IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1. CWP No. 1023 of 2011 Date of Decision: 3.6.2011. Paramveer Singh and others --Petitioners Versus Punjab Public Service Commission & others --Respondents 2. CWP No.528 of 2011 Simar Preet Kaur --Petitioner Versus Punjab Public Service Commission --Respondent 3. CWP No.648 of 2011 Gur Jai Pal Singh --Petitioner Versus Punjab Public Service Commission & another --Respondents 4. CWP No.823 of 2011(O&M) Sukhpal Singh --Petitioner Versus Punjab Public Service Commission & another --Respondents 5. CWP No.2435 of 2011 Gursharan Singh --Petitioner Versus Punjab Public Service Commission & another --Respondents 6. CWP No.2436 of 2011 Harnek Singh & another --Petitioners Versus Punjab Public Service Commission & another --Respondents 7. CWP No.2507 of 2011 Maninder Partap Singh --Petitioner Versus Punjab Public Service Commission & another --Respondents 8. CWP No.2553 of 2011 Karamvir Singh --Petitioner Versus Punjab Public Service Commission & another --Respondents CWP No. 1023 of 2011 -2- 9. CWP No.2666 of 2011 Manpreet Kaur & others --Petitioners Versus Punjab Public Service Commission & others --Respondents 10. CWP No.2688 of 2011 Ravinder Kaur --Petitioner Versus Punjab Public Service Commission & another --Respondents 11. CWP No.2735 of 2011 Ravinderjeet Singh --Petitioner Versus Punjab Public Service Commission & another --Respondents 12. CWP No.4682 of 2011 Kamaljit Singh & another --Petitioners Versus Punjab Public Service Commission & another --Respondents 13. CWP No.6522 of 2011 Manpreet Singh --Petitioner Versus Punjab Public Service Commission & others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Pawan Kumar, Sr. Advocate with Mr. Saquib Ali Khan, Advocate. Mr. Jagdeep Singh, Mr. H.C. Arora, Mr. S.L. Chander Shekhar, Mr. G.N. Malik, Mr. Harsh Aggarwal, Mr. P.S. Khurana, Mr. B.S. Sewak, Mr. G.L. Bajaj, Ms. Jyoti Sarin, Mr. Gurmohan Singh, Mr. H.C. Arora, Advocates for the petitioners. Mr. Puneet Gupta, Addl. A.G., Punjab. Ms. Anu Pal, A.A.G., Punjab. *** PERMOD KOHLI.J (ORAL) Faced with the common factual premises and questions of law, all these petitions are being disposed of by this common order. In view of the common questions replies filed by the State of Punjab and Punjab Public Service Commission in C.W.P. No. 1023 of 2011 CWP No. 1023 of 2011 -3- have also been treated as common replies in all these writ petitions. The Punjab Public Service Commission (hereinafter referred to as the Commission) i.e respondent no.1 issued an advertisement dated 26.11.2009 inviting applications for filling up of 143 posts through Punjab Civil Services Combined Competitive Examination, 2009. Initially 143 posts were advertised, however, by a corrigendum dated 21.12.2009 issued by the Commission, posts of Excise & Taxation Officers were increased from 37 to 74 distributed in various categories. Thus, the total number of seats brought within the purview of aforementioned examination came to 180. Appointment to Punjab Civil Services (Executive Branch) is regulated by the statutory rules framed under proviso to Article 309 namely Punjab Civil Services (Executive Branch) (Class-I), Rules, 1976. Rule 7 deals with the appointment to the service and reads as under:- “ 7. Appointment to the Service shall be made in manner herein provided from amongst accepted candidates whose names have been duly entered in accordance with these rules in the Registers of accepted candidates to be maintained under these rules.” Rule 8 deals with the Registers to be maintained. Under Rule 8 as many as five types of Registers are to be maintained. Register A-1, A-2, A-3 and 'C' deal with the appointment to the service from the in service candidates from various feeding services of the State of Punjab, whereas Register 'B' deals with the direct recruitment on the basis of main competitive examination. Rule 8(4) reads as under:- “8. The following Registers of accepted candidates shall be maintained by the Chief Secretary to Govt., Punjab namely:- (4) Register B in which shall be entered the name of persons accepted as candidates as a result of the main competitive examination CWP No. 1023 of 2011 -4- and.” Rule 14 deals with the inclusion of the qualified candidates in the main competitive examination in Register 'B' subject to the provisions of Rules 13 and 13-A. Rules 12 and 13 deal with the conduct of the preliminary competitive examination and admission of candidates to the preliminary competitive examination respectively, whereas Rule 13-A deals with the main competitive examination to be held for selection of candidates. These rules are reproduced hereunder:- “ 12. (1) A preliminary competitive examination, the regulations of which are contained in Appendix II of these rules, shall be held at any place in the State of Punjab as and when notified by the Govt. through the Commission for the purpose of selection of candidates for admission to the main competitive examination as specified in rule 13-A. (2) Notice of the date fixed for the preliminary competitive examination shall be published in the Punjab Govt. Gazette. 13.(1) Applications for permission to sit in the preliminary competitive examination will be called by the Commission and shall be made in the manner and form prescribed and accompanied by such documents or papers as may be required by the Commission in this behalf. (2) No person shall be allowed to appear in the preliminary competitive examination. (a) who has not attained the age of twenty one years or who will have attained the age of twenty seven years on the last date fixed by the Commission for submission of applications:- Provided that the upper age limit may be relaxed by the Govt. from time to time: Provided further that in the case of a candidate who belongs to Scheduled Castes or Backward Classes, the upper age limit shall be such as may, from time to time, be fixed by the Govt. in respect of entry into service under the State of persons belonging to such castes or classes. (b) who does not possess at least a bachelor's degree of a recognized university in Arts, Science or Commerce; and (c) who does not by the closing date for receipt of CWP No. 1023 of 2011 -5- applications to be notified by the Commission send a crossed Bank Draft drawn in favour of Secretary, Punjab Public Service Commission payable at Patiala on account of non-refundable examination fee as fixed by the Commission: Provided that a Govt. servant holding a ministerial appointment under the Punjab Govt. including Courts, who has not less than four years continuous service under the Govt. on the last date fixed by the Commission for submission of applications, shall be eligible to appear in the examination if he possesses at least a Bachelor's degree of a recognized university in Arts, Science or Commerce and has not attained the age of thirty eight years subject to the condition that he has not availed of three chances in addition to those which he might have already availed of in any other capacity. Note:- Any person who is eligible as Govt. servant under this rule and wishes to appear in the examination, shall submit his application in the prescribed form through the Head of his office to the Secretary to the Commission. 13-A (1) A main competitive examination, the regulations of which are contained in Appendix III of these rules, shall be held at any place in the State of Punjab as and when notified by the Govt. through the Commission for the purpose of selection by competition of as many candidates for the service as Govt. may determine. (2) Notice of the date fixed for the main competitive examination shall be published in the Punjab Govt. Gazette. (3) No candidate shall be allowed to sit in the main competitive examination, unless he has qualified the preliminary competitive examination in terms of the provision of rule 12. (4) The total number of candidates to be admitted to the main competitive examination shall not exceed thirteen times the total number of vacancies determined by the Govt. under sub rule (1).” The Commission also issued brochure for Punjab State Civil Service Combined Competitive Examination, 2009. The brochure contains entire information in respect to the number of vacancies, categorywise break up, the conditions relating to preliminary and main competitive examination CWP No. 1023 of 2011 -6- and other details regarding the examination centres etc. As per the brochure the preliminary competitive examination consist of two papers in the following manner:- “ PRELIMINARY PUNJAB STATE CIVIL SERVICE COMBINED COMPETITIVE EXAMINATION 1. The preliminary competitive examination will consist of two papers of objective type (multiple choice questions) and carry a maximum of 450 marks in the subject as under:- Paper I General Studies 150 marks Paper II One subject to be 300 marks selected from the list of optional subject given below. Total: 450 marks” Those who are qualified in the preliminary competitive examination are entitled to apply for admission to the main competitive examination. All the petitioners applied for preliminary examination in response to the aforementioned advertisement. Petitioners in these petitions belong to Scheduled Castes, Backward Classes and Freedom Fighter categories. The fact remains that all the petitioners belong to one or the other reserved category. They were issued admit card and roll numbers for participation in the preliminary examination which was held on 19.12.2010. The Commission issued list of the successful candidates of preliminary examination. The list comprises of shortlisted candidates for the main examination category wise like general, Scheduled Castes, Backward Castes etc. Even though the list is roll number wise, however, every list contains CWP No. 1023 of 2011 -7- category wise cut off marks secured by the candidates in the preliminary examination. The details of category wise cut off marks for each category are in the following manner:- “ GENERAL CATEGORY (71) TOTAL CANDIDATES=1106 CUT OFF MARKS=290.017 ESM, PUNJAB CATEGORY (72) TOTAL CANDIDATES=119 CUT OFF MARKS=68.456 LDESM, PUNJAB CATEGORY (73) TOTAL CANDIDATES=48 CUT OFF MARKS=203.578 FREEDOM FIGHTERS, PUNJAB CATEGORY (74) TOTAL CANDIDATES=14 CUT OFF MARKS=305.050 SPORTS PERSONS, PUNJAB CATEGORY (75) TOTAL CANDIDATES=26 CUT OFF MARKS=226.510 PHYSICALLY HANDICAPPED, PUNJAB CATEGORY (76). TOTAL CANDIDATES=66 CUT OFF MARKS=223.063 SC OTHERS, PUNJAB CATEGORY (77) TOTAL CANDIDATES=249 CUT OFF MARKS=276.023 SC ESM, PUNJAB CATEGORY (78) TOTAL CANDIDATES=12 CUTT OFF MARKS=68.456 SC OTHERS(SPORTSPERSONS) PUNJAB CATEGORY (80) TOTAL CANDIDATES=4 CUTT OFF MARKS=211.155 B/M SIKH, PUNJAB CATEGORY (81) TOTAL CANDIDATES=236 CUT OFF MARKS=231.117 B/M SIKH, PUNJAB CATEGORY (82) TOTAL CANDIDATES=1 CUT OFF MARKS=88.591 B/M SIKH SPORTS PERSON, PUNJAB CATEGORY (84) TOTAL CANDIDATES=2 CUT OFF MARKS=230.923 BC, PUNJAB CATEGORY (85) TOTAL CANDIDATES=317 CUT OFF MARKS=225.017 BC ESM, PUNJAB CATEGORY (86) TOTAL CANDIDATES=12 CUT OFF MARKS=68.456” CWP No. 1023 of 2011 -8- Petitioners who belong to different reserved categories have not been shortlisted for the main examination having secured marks less than the cut off marks in their respective categories, however, some of the petitioners have secured marks more than the last qualified candidates in the general category. It is also pertinent to note that in most of the reserved categories, the shortlisted candidates have secured more marks than the last shortlisted in the general category. In view of this factual background, the petitioners have approached this Court seeking a direction for shifting the reserved category candidates who have secured more marks than the shortlisted candidates in general category to general category on the basis of their higher merit and resultant slots in reserved list be filled from reserved category candidates next in the merit on the basis of preliminary test. The prayer made in some of the writ petitions is also to redraw the merit list in accordance with the mandate of judgements in case of Indra Sawhney Vs. Union of India, reported as 1992 Suppl. (3) SCC 217 and R.K. Sabharwal and others Vs. State of Punjab reported as 1995(2) RSJ 895. The stand of the Commission and the State-respondents is identical. It is stated that as per the Punjab State Civil Service (Appointment by Combined Competitive Examination) Rules, 2009 read with Punjab Civil Service (Executive Branch) Rules, 1976, (Rule 13-A(4) the total number of candidates to be admitted to the main competitive examination cannot exceed 13 times the total number of vacancies determined by the Govt. under sub rule 1. Rule 13-A (4) relied upon by the respondents reads as under:- CWP No. 1023 of 2011 -9- “ The total number of candidates to be admitted to the main competitive examination shall not exceed thirteen times the total number of vacancies determined by the govt. under sub-rule (1).” It is, accordingly, contended that there is no provision, under the rules or instructions, which inter alia requires a reserved category candidate who secures more marks than the general category candidate, is to be treated as general category candidate for purposes of shortlisting as prelude to main competitive examination. Respondents have further relied upon the instructions dated 30.12.1996, which prohibits conversion from one category to another. It is, accordingly, stated that the candidates are required to be shortlisted up to thirteen (13) times the number of vacancies in their own category and no candidate can be shifted from one category to another including from reserved to general category for purposes of shortlisting for main competitive examination. It is also the stand of the State that reservation is provided under the backward classes (Reservation in Services) Act, 2006 and there is no provision in the said Act, whereunder a reserved category candidate who secures more marks than the general category can be treated as general category candidate. It is also the stand of the respondents that the candidates who applied under a particular category are required to appear in the main examination and viva voce test in the same category in which they had applied. The State of Punjab has enacted the Punjab Scheduled Castes and Backward Classes (Reservation in services) Act, 2006. This Act is applicable to all appointments by a direct recruitment, by promotion or by transfer. Section 4 provides the percentage of reservation for each category CWP No. 1023 of 2011 -10- and reads as under:- “4. Percentage of Reservation-(1) While making appointments in service by any of the methods, provided under any Service Rules, reservation shall be made for the members of the Scheduled Castes and Backward Classes in the services under all the establishments. (2) The percentage of reservation for filling up the vacancies by direct recruitment or by transfer in Group 'A', Group 'B', Group 'C' and Group 'D' services, shall be twenty-five per cent for Scheduled Castes and twelve per cent for Backward Classes. (3) The percentage of reservation for filling up the vacancies by promotion by Scheduled Castes in Group 'A' and Group 'B' services shall be fourteen per cent. (4) The percentage of reservation for filing up the vacancies by promotion by Scheduled Castes in Group 'C' and Group 'D' services shall be twenty per cent. (5) Fifty per cent of the vacancies of the quota reserved for Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhbi Sikhs, if available, as a first preference from amongst the Scheduled Castes. (6) Reservation shall be implemented by reserving vacancies by means of a running roster, as may be prescribed till the percentage of reservation, as specified in sub-sections (2), (3) and (4) are completed. (7) Reservation shall be applicable to vacancies to be filled on ad hoc basis, short term vacancies, work charged establishment, daily wages staff and the staff engaged on contract basis. (8) Reservation shall also be applicable to proforma promotion and appointment by transfer.” Section 7 deals with the de-reservation of the reserved vacancies and reads as under:- “ De-reservation of reserved vacancy (1) There shall be no de- reservation of any reserved vacancy by any appointing authority in any establishment, which is to be filled up by direct recruitment or by promotion. In case, a qualified or eligible Scheduled Castes or Backward Classes candidate, as the case may be, is not available to fill up such CWP No. 1023 of 2011 -11- vacancy, in that situation, such vacancy shall remain unfilled. (2) Notwithstanding anything contained in sub-section (1), if, in the public interest, it is deemed necessary to fill up any vacancy referred to in that sub-section, the appointing authority shall refer the vacancy to the Department of Welfare of Scheduled Castes and Backward Classes for de-reservation. Upon such reference, the Department of Welfare of Scheduled Castes and Backward Classes may, if it is satisfied that it is necessary or expedient so to do, by order in writing, de-reserve the vacancy, subject to the condition that the vacancy so de-reserved, shall be carried forward against a subsequent unreserved vacancy.” Contention on behalf of the petitioners is that the reservation policy of the State is to be applied in accordance with the provisions of the Reservation Act, Govt. Instructions issued from time to time and the judgement of the Hon'ble Apex Court. In case reported as 1992 Suppl. (3) SCC 217, titled as Indra Sawhney Vs. Union of India, the Hon'ble Supreme Court observed as under:- “811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition filed on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.” In a subsequent Constitution Bench judgement in case of R.K. Sabharwal Vs. State of Punjab, 1995 (2) SCT 646. The Hon'ble Supreme Court has further observed as under:- “ 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 points 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 reserve posts. On the other hand the reserve category candidates can compete CWP No. 1023 of 2011 -12- for the non-reserve posts and in the event of their appointment to the said 356 posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments 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. 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 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. Despit any number of appointment/promotees belonging to the backward classes against the general category posts the given percentage has to be provided in addition.” Hon'ble Supreme Court again considered the question of application of the reservation in case of Ritesh R. Sah Vs. Dr. Y.L. Yamul reported as 1996 (2) SCC 253 and followed the above view, however, this was a case of admission to professional course. In case of Ravinder Kumar CWP No. 1023 of 2011 -13- Vs. State of Haryana and others reported as 2010 (5) SCC 136 the Hon'ble Supreme Court applying the principle of merit of the reserved category candidates observed as under:- “11. It was argued by Mr. Patwalia and in our opinion rightly so that if an ex-serviceman candidate scored high enough marks entitling him to be selected in the Ex-servicemen (General) category, such candidates ought to be selected in the said category instead of selecting them in the Ex-servicemen BC(A) or BC(B) categories.” In case of Jitender Kumar Singh and another Vs. State of U.P. And others reported as 2010 (3) SCC 119 Hon'ble Supreme Court was again examining the controversy whether reserved category candidate can be selected against the general category post on obtaining more marks than the last candidate in the general category. In para 33 of the judgement, Hon'ble Supreme Court noticed the issue involved which reads as under:- “ 33. The core issue in the writ petitions was with regard to filling up the General Category posts by candidates belonging to the reserved category candidates on their obtaining more marks than the last candidate in the General Category.” This question has been answered as under:- “From the above it becomes quite apparent that the relaxation in age limit is merely to enable with the general category candidate, all other things being equal. The State has not treated the relaxation in age and fee as relaxation in the standard for selection, based on the merit of the candidate in the selection test i.e. Main Written Test followed by Interview. Therefore, such relaxation cannot deprive a reserved category candidate of the right to be considered as a general category candidate on the basis of merit in the competitive examination.” Based upon these judgements, learned counsel appearing for the petitioners have submitted that reserved category candidates cannot be put to disadvantageous position. Even by securing more marks than the CWP No. 1023 of 2011 -14- general category candidates, they have been retained in reserved category and thus deprived the reserved category candidates next in the merit of their right of participation in the main competitive examination. It is vehemently argued that all those reserved category candidates who have qualified on the basis of their own merit are to be treated as general category candidates for purposes of shortlisting, allowing the benefit of reservation to other reserved category candidates, who are next in the merit in the relevant category. It is contended that the benefit of reservation is to be granted to the deprived classes of the society who by virtue of their deprivation are unable to play a level game with others, however, by not treating the meritorious reserved category candidates amongst the general category candidates, the benefit of reservation does not percolate to the deserving reserved category candidates. Apart from above petitioners have also relied upon Govt. Instructions dated 10.7.1995, wherein following provisions have been made:- “ (i) While calculating the percentage of reservation as prescribed in Govt. Instructions from time to time, the officials/officers appointed/promoted on seniority-cum-merit basis belonging to reserve categories will be excluded from the number of reserve categories working in the particular cadre.” These Govt. Instructions have also been followed by another Govt. Instructions dated 30.12.1996, whereby quantum of reservation for Backward Classes in the State Services has been fixed. This notification further provides that where the regular number of Scheduled Castes Ex- serviceman candidates are not available the earmarked vacancies for this category would first go to Scheduled Castes and in case no Scheduled CWP No. 1023 of 2011 -15- Castes candidates are available, these will be given to the Ex-serviceman (general) category candidates. It is, accordingly, argued that enough number of Scheduled Castes Ex-serviceman being not available, the vacancies would go to Scheduled castes