CWP No.11775 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ***** CWP No.11775 of 2010 Date of decision : 9.5.2011 Harjit Singh ........Petitioner Vs. State of Punjab and others ......Respondents CORAM : HON'BLE MR. JUSTICE PERMOD KOHLI Present:- Mr.Rajinder Sharma, Advocate, for the petitioner Mr.Anu Paul, AAG, Punjab None for respondent No.3 --- PERMOD KOHLI, J (Oral) : No one is present on behalf of respondent No.3. He is accordingly set ex parte. This petition proceeds on admitted facts noticed hereinafter - Respondent No.2 invited applications for the appointment to various posts including 856 posts of Multipurpose Health Worker (Male) in the Health and Family Welfare Department, Punjab vide advertisement dated 1.9.2006. The petitioner and respondent No.3, both applied for the said post, admittedly, both were eligible. The petitioner applied under Scheduled Caste Category whereas respondent No.3 under the General Category. A merit list was prepared by respondent No.2. The petitioner has secured 721 marks out of 1000 marks equivalent to 72.10% whereas respondent No.3 has secured 719 marks out of 1000 marks equivalent to 71.90%. Respondent No.3 has been appointed as Multipurpose Health Worker on contract basis CWP No.11775 of 2010 -2- for a period of one year. It is stated that even though the posts were initially advertised for a period of one year, however, the appointees are allowed to continue by granting extensions. Admittedly, respondent No.3 has lessor merit than the petitioner. The petitioner has been denied appointment despite higher merit. In the reply filed by the respondents denial of the appointment of the petitioner is sought to be justified on the ground that the petitioner applied under reserve category of Scheduled Caste II whereas respondent No.3 has applied under General category. It was stated that the merit of the last selected candidate under the Scheduled Category II was 72.30% and thus, the petitioner, who obtains 72.10% marks could not be selected. It is, however, admitted that respondent No.3, who obtained 71.95% marks, has been selected in the General Category, for which the cut of merit was also 71.90%. It is the case of the respondent that in the advertisement, it was specified that the candidates shall be considered in their respective categories, to which they have applied. The only question, thus, requiring consideration in this petition is whether a reserve category candidate, who secured more marks than the General Category candidate, can be denied appointment by affording consideration to him only in the reserve category. This issue is no more res- integra. A Constitution Bench of Hon'ble Supreme Court in 'Indira Sawhney v. UOI, 1993 (1) SCT 448' while considering the question of equality of opportunity in the matters of public employment and the reservations for reserved categories under Article 16 (4) of the Constitution of India, also heed that where a candidate belonging to reserve category secures higher merit, such candidate is to be appointed against the open CWP No.11775 of 2010 -3- category vacancy. The relevant observations are as under - “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 field 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.” This plea was reiterated by another Constitution Bench of the Hon'ble Supreme Court in case of 'R.K.Sabharwal and others v. State of Punjab and others, AIR 1995 SC 1371 (1)'. The relevant observations are 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 for the non-reserve posts and in the even of their appointment to the said posts, their numbers cannot be added and taken into consideration for working out the percentage of reservation.” In view of the above ratio, the petitioner though applied under reserve category, was required to be considered against general seats on account of his higher merit. Reservation cannot work to the disadvantage of meritorious candidate. As a matter of fact, all candidates of reserve category, who have secured higher merit and can conveniently compete with the General Category candidates, have to be firstly adjusted against the General CWP No.11775 of 2010 -4- vacancies and thereafter, the quota of reservation has to be applied. Admittedly, the petitioner has more marks than respondent No.3 notwithstanding the facts that the petitioner belongs to reserve category, he was required to be selected against the General vacancies on his own merit. A similar view has been expressed by this Court in 'Vishal v. Panjab University, Chandigarh, 1995 (2) SCT 461' which is as under - “In view of these pronouncements, it must be held that the action of the respondent-University in granting admission to the reserved category candidates only against the reserved seats without giving them admission against the general category seats is arbitrary and is unjustified. This is also violative of the policy framed by the respondent-University for giving admission to the candidates to the LL.B.Course of 1994-95.” In view of the above, this petition is allowed. Appointment/selection of respondent No.3 is hereby set aside and official respondents are directed to appoint the petitioner against the General vacancy held by respondent No.3. (PERMOD KOHLI) JUDGE 9.5.2011 akm 1. Whether reporters of local papers 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?