CWP No.15818 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.15818 of 2007 Date of Decision:March 4,2008 Dr. Ajit Singh ............. Petitioner Versus State of Haryana and others. ..............Respondents. CORAM: HON'BLE MR.JUSTICE JASBIR SINGH. HON'BLE MR.JUSTICE JASWANT SINGH. Present:- Sh.J.S.Yadav, Advocate for the petitioner. Sh.Harish Rathee,Sr.DAG, Haryana for respondents 1 to 3. ***** JASWANT SINGH, J. In the instant writ petition, the petitioner has sought quashing of Advertisement No.06/2007, dated 21.6.2007, in regard to Category No.6 (copy Annexure P-5), vide which one post of District Ayurvedic Officer (for General Category only) has been advertised, on the ground that the same is against the reservation policy/instructions issued by the Government of Haryana. He has further prayed for issuance of a writ in the nature of mandamus directing the respondents to advertise the said post as reserved for Backward Class, being 10th post in the cadre of District Ayurvedic Officer, meant for direct recruits and as such falling to the share of B.C. category as per the reservation policy. The facts as pleaded by the petitioner in the writ petition are that he belongs to a Backward Class category; is also a ward (son) of Ex- serviceman; and working as Ayurvedic Medical Officer in the Directorate CWP No.15818 of 2007 -2- of Ayurveda, Yoga, Naturopathy, Sidha, Homeopathy and Unani System Medicines (AYUSH)- Respondent no.3 since 28.2.2000. There are 20 sanctioned posts of District Ayurvedic Officer/Ayurvedic Officers in respondent no.3-Department, which are governed by Haryana Ayush Department (Group-B) Service Rules,1989 (hereinafter referred to as 1989 Rules). Rule 9(1)(b) of the 1989 Rules provide for the method of recruitment to the post of District Ayurvedic Officer and it lays down that 50% posts are to be filled up by promotion and 50% by direct recruitment or by transfer or deputation. It is further averred that the State has issued reservation policy for Scheduled Castes, Backward Classes etc., providing for reservation to the stated percentage/quantum in recruitment to various services in the State of Haryana. A copy of the reservation policy dated 24.1.1991 has been annexed as Annexure P-4 with the writ petition, providing for reservation of post to the extent of 10% for backward classes. It is further the case of the petitioner that there being 20 sanctioned posts of District Ayurvedic Officer, 10 posts out of the same as per Rule 9(1) (b) of 1989 Rules belong to the promotion quota and remaining 10 are meant for direct recruit quota and at present out of the said 10 posts meant for direct recruits, 9 posts are occupied by direct recruits selected and appointed against general category posts and no post had been ever advertised as being reserved for any of the reserved category candidates. The 10th post of District Ayurvedic Officer, now being advertised vide impugned advertisement dated 21.6.2007 (Annexure P-5), as per reservation policy, should be reserved for backward class category since as per roster the 10th post is meant for reserved category of backward class. On this ground, the petitioner has challenged the said advertisement for the post of District CWP No.15818 of 2007 -3- Ayurvedic Officer advertised for General Category only. In order to avoid any complication, the petitioner is said to have applied for the said post in the General Category although he belongs to a Backward Category. He has represented against the said illegal action, however, his grievance has not yet been redressed and the respondents have proceeded to conduct the interviews. Hence, the present writ petition. Respondents 1 and 3, upon notice have filed their written statement. In preliminary submissions, the answering respondents have admitted that out of 20 sanctioned posts of District Ayurvedic Officer, 10 posts are to be filled up by direct recruitment as per the 1989 Rules and 9 posts falling to the share of direct recruits have already been filled up. One vacant post meant for direct recruits, which has been advertised by respondent no.4- Haryana Staff Selection Commission vide impugned Advertisement dated 21.6.2007 (Annexure P-5) has occurred at roster point no.14, which relates to General Category. Government's instructions dated 25.3.1975 have been annexed with the written statement as Annexure R-1, (with its English translation as Annexure R-1/T) which lay down that the number of posts filled in by appointing candidates belonging to Scheduled Castes/Backward Classes, who are selected on their own merit should be reduced from the reserved quota. It is further averred that Sh. Mohinder Singh Soni and Dr. Jagdish Chander Sihag, who belong to Backward Class and dependent of Ex-serviceman category respectively are working on the post of District Ayurvedic Officer since 6th August,1990 and 9th August,1990 respectively, having been recruited through Haryana Public Service Commission against general category. It has been further stated that according to the roster register, vacancy occurring at point no.10 relating to CWP No.15818 of 2007 -4- backward class and at point no.12 for Ex-servicemen/ dependent of Ex- servicemen, has been allotted to the aforesaid two officers, who belong to Backward Class and Ex-servicemen category respectively and were already working on the posts of District Ayurvedic Officer, therefore the vacancies which occurred at Sr.No.10 for Backward Class and at Sr.No.12 for Ex- servicemen/ their dependents, were reduced by the department from the reservation according to the Government instructions dated 25.3.1975 (copy Annexure R-1) and hence these vacancies were not advertised in the respective reserved category. It is further stated by the answering respondents that the instructions dated 25.3.1975 have been modified by the Government vide their letter dated 25.6.1997 (copy Annexure R-2) which provide that the posts of reserved categories are not to be reduced on the recruitment of candidates of a reserved category on their merit against the general category and they shall be filled in the future vacancies of reserved categories. Lastly, the answering respondents have given out that the roster register maintained by the department has been checked by the authorised roster team from time to time and no shortfall of Backward Class and Ex- servicemen was ever found by the said team. At the asking of the Court, Dr. Paramjit Singh, Director AYUSH, filed his affidavit dated 17.12.2007 giving out further details to support his averments made in the written statement. The petitioner, in rebuttal, has filed his affidavit dated 21.12.2007, vide which he has also placed on record instructions dated 9.2.1979 (Annexure P-9) and instructions dated 16.12.1980 (Annexure P-10) issued by the Government of Haryana, providing for reservation of posts in recruitment. In the affidavit dated 17.12.2007, filed by Dr. Paramjit Singh, it CWP No.15818 of 2007 -5- is submitted that the roster for reservation was introduced under the instructions dated 9.2.1979 and all the present posts of District Ayurvedic Officers/ Ayurvedic Officers have been created after 9.2.1979 on different dates as mentioned in paragraph 1 of the affidavit. The number of posts advertised alongwith their date of advertisement and names of officers occupying the said posts alongwith their date of joining and category to which they belong have been stated therein. For ready reference, the said detail is reproduced hereunder:- “ S.No Name of officer Posts advertised Date of Joining Belonging to the Category 1 Dr. Ishwar Singh Six (4.10.1989) (two persons appointed from waiting list) 10.4.1990 General 2 Dr. R.K. Malik (since promoted as Assistant Director now working as Deputy Director) -do- 10.04.1990 General 3 Dr.Ved Pal Beniwal (Promoted and Retired) -do- 09.04.1990 General 4 Dr. Gurmel Singh -do- 06.04.1990 S.C. 5 Dr. Jagdish Chand -do- 09.08.1990 D.E.S.M. 6 Dr. Raja Madan Mohan -do- 15.06.1990 General 7 Dr.Ram Charan (Retired) -do- 06.08.1990 General 8 Dr.Mohinder Singh Soni -do- 06.08.1990 B.C. 9 Dr.Ram Parkash Nagar (Expired) One (17.11.1994) 13.10.1995 S.C. CWP No.15818 of 2007 -6- S.No Name of officer Posts advertised Date of Joining Belonging to the Category 10 Dr.Jai Kishan Sangwan One (27.4.1998) 23.10.2001 General 11 Dr.Sushila Dahiya Three (4.9.2001) 25.09.2002 General 12 Dr.Ajit Singh -do- 08/09/2002 General 13 Dr.Satpal -do- 12.09.2002 S.C.(B) 14 One (Vacant) One (21.06.2007) - -” “At present out of 9 District Ayurvedic Officers Working against the Direct Recruitment quota, 5 officers are of General Category, 2 are of S.C. category, 1 is of B.C. Category and 1 is of Dependent of Ex-serviceman (D.E.S.M.) category, as such the one post of General Category has been advertised by the Respondent.” It has been thus explained that Dr. Mohinder Singh was deemed to be adjusted against the 10th post meant for BC category as per roster provided by the instructions dated 9.2.1979, keeping in view the instructions dated 25.3.1975 (Annexure R-1) and therefore no post for Backward class category was now required to be advertised and hence the post has been advertised vide advertisement dated 21.6.2007 for a General category only. Relevant provisions of instructions dated 9.2.1979 (Annexure P-9) which provide for reservation of posts, on reproduction read as under:- “(1)(i) The quantum of reservation will be as under:- By Direct Recruitment CWP No.15818 of 2007 -7- (a) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (b) For Backward Classes 10% (in class I, II,III and IV posts) (c ) For Ex-servicemen (i) 5% (in class I & II posts) (ii) 20% (in Class III & IV Posts) By promotion xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (ii) Henceforth within a block of 100 posts in each cadre, the following posts should be reserved for persons belonging to Scheduled Castes and Backward Classes and for Ex-servicemen. (a) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (b) **[For persons belonging to Backward Classes for promotion to class III and IV posts on the basis of selection from a slab of 3 officials and direct recruitment to all classes of posts). 10-16-22-32-46-56-70-76-86 and 96 (c xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx It is clarified that a single roster of 100 posts both for direct recruitment and promotion will be prepared as referred to above. This roster will continue from year to year till it is exhausted and thereafter a new roster will be prepared. The aforesaid benefit of reservation will be given till such time as the number of employees belonging to reserved categories in each cadre grade does not come upto the prescribed percentage. CWP No.15818 of 2007 -8- (2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) Reserved posts not filled by the candidates belonging to reserved categories should be carried forward for two recruitment years. The recruitment year shall mean a calendar year and the two years limit for carry forward of reserved posts shall start from the year in which recruitment is actually made. The carry forward would mean that if a sufficient number of suitable candidates eligible for reserved posts are not available from the appropriate classes in any year of recruitment such posts should be treated as unreserved and filed in as unreserved posts but should be carried forward to subsequent years of recruitment so that posts then occurring may be filled in by the persons belonging to reserved categories. For example, if a requisition for filling up of five posts of Clerks, is sent to the Subordinate Services Selection Board in the month of January,1977 and the recommendations of the Board are received in March,1978. But the Board could not recommend any candidate against the reserved posts, then the reserved posts would be carried forward for a period of two years viz. 1979 and 1980. In this connection, it is further clarified that in future, the carried forward reserved posts would be available together with the current posts for utilisation even when the total number of such reserved posts exceeds 50% of the posts filled in that year provided that the overall representation of Scheduled Castes/ Backward Classes in the total strength of the concerned cadre does not exceed the prescribed percentage of reservation. (4) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx CWP No.15818 of 2007 -9- (5) At present reservation is given against posts and not against vacancies. It has been decided that *[the reservation should be given both against the new posts whether permanent or temporary, as well as against vacancies which may occur as a result of death, retirement, resignation, removal or dismissal or promotion on regular basis].” It has been argued by the learned counsel for the petitioner that out of 10 posts falling to the share of direct recruits, only 9 were manned by direct recruits, who were selected and appointed as General category candidates, therefore, the 10th post as per the reservation policy was required to be filled up from amongst backward class category only and Sh. Mohinder Soni, who had joined the service as a General category candidate cannot be treated as a backward class candidate. Relying upon para 5 and 6 of judgment rendered by Hon'ble the Supreme Court in R.K.Sabbarwal v. State of Punjab, 1995(2) SCT 646, it was further argued by the learned counsel for the petitioner that percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength and the concept of vacancy has no relevance in operating the percentage of reservation. He further contended that the same view i.e. roster has to be post specific and not vacancy based was reiterated in para 83 in the case of M.Nagaraj and others v. Union of India and others, 2007 (4) SCT 664. Accordingly the approach of the respondent department in not giving the 10th post meant for direct recruit to the backward class category, as provided in the roster point of the reservation policy is contrary to law. The learned Senior Deputy Advocate General on the other hand CWP No.15818 of 2007 -10- has argued that the action of the respondents is perfectly in accordance with the instructions namely 25.3.1975 (Annexure R-1) and 9.2.1979, governing the matter in issue. A combined reading of both the instructions makes it clear that reservation for scheduled Caste and scheduled Tribe candidates amongst others is against posts and not against vacancies. These instructions further provide that various reserved categories have to be adequately represented in service and once the prescribed percentage of a category has reached, albeit, of their own merit, then post in that category can be reduced. In the present case, Sh. Mohinder Singh Soni had come to occupy the 10th post reserved for backward class category in the roster maintained by the department as per instructions dated 9.2.1979, therefore, no post now was required to be advertised for backward class category. We have heard learned counsel for the parties and have gone through the record carefully. Before dealing with the rival submissions of the learned counsel for the parties, we deem it appropriate to refer to the judgment of the Hon'ble Supreme Court in R.K. Sabbarwal's case (supra). The Constitutional Bench was seized of the instructions dated 4.5.1974 issued by the Government of Punjab providing for reservation for scheduled Castes and backward Classes in promotion to and within Class-I and Class-II services. The relevant extracts of the instructions is reproduced in para 1 of the judgment. The instructions provide for reservation in promotion in a lot of 100 vacancies occurring from time to time and the quantum of reservation prescribed was to be given effect in accordance with the roster to be maintained in each department. The roster was implemented in the form of running account from year to year basis. The Hon'ble Supreme CWP No.15818 of 2007 -11- Court held that that as per Article 16(4) which carves out a separate field for itself from the general sweep of Article 16(1), which guarantees equality of opportunity in matters of appointments in government services to all citizens of India, the reservation for these categories in employment has to be achieved by earmarking the requisite percentage of posts for the reserved category of candidates and by pitchforking these posts on roster points on the maintained roster and when such a roster takes a full cycle, posts earmarked on reserved points will enable the requisite reserved category of candidates to fill up these posts. After that is done, the roster would be treated to have achieved its purpose. Whenever a reserved candidate vacated a reserved post, the said post was liable to be filled only by a candidate belonging to the reserved category. If after the roster is first operated and thereafter it is again operated on future vacancies also, a situation may arise wherein a cadre may get reserved category exceeding the permitted quota of reservation. It is to avoid this contingency that the Constitutional Bench in paras 5 and 6 of the judgment (as referred to by the counsel for the petitioner) laid that reservation was against posts and not against vacancies (as provided for in the instructions dated 7.5.1974 issued by the Government of Punjab). The Hon'ble Supreme Court also rejected the argument that for working out the percentage of reservation the total number of promotees/ appointees belonging to reserved category in the service, whether appointed on the reserved posts as per roster or general category posts, are to be counted. Thus, it held that the roster point which is reserved for reserved category has to be filled by way of appointment/promotion of the member of the said class only and no general category candidate can be CWP No.15818 of 2007 -12- appointed against that head in the roster which is reserved for a reserved category. It was further held that the mandate of the judgment was to be applied prospectively. The facts of the present case indicate that the instructions dated 9.2.1979 (reproduced hereinabove) providing for reservation issued by the State of Haryana are substantially different than the instructions issued by the State of Punjab. Para 1(ii)(b) makes it clear that these instructions provide for a methodology/ mechanism for implementing the quantum of reservation against various posts (as against vacancies in State of Punjab). These instructions provide that in a block of 100 posts in each cadre for backward class for direct recruitment 10th, 16th, 22nd etc., shall be reserved for backward classes to provide adequate reservation for them. This roster is to be continued from year to year till it is exhausted (contrary to State of Punjab where roster is to be maintained in the form of running account on year to year basis) and thereafter a new roster has to be prepared. Benefit of reservation has to be given till such time as number of employees belonging to backward class category do not reach prescribed percentage. Utility of a roster is to provide a guideline for filling up the reserved posts for different groups vis a vis candidates from general category. The instructions further provide that once the reservation is achieved for one or other group of communities entitled to reservation the roster will cease to have utility for that community because the guidelines would have already been followed. Thus, the roster points are a tool for implementing the rule of reservation and the provision relating to maintaining of roster in the services of Government of Haryana and implementing the same to achieve/implement the rule of reservation is in consonance with the dictates CWP No.15818 of 2007 -13- of the Constitutional Bench in R.K. Sabbarwal's case (supra). The facts emerging from the record of the present case reveal that the respondents have implemented the rule of reservation strictly in accordance with the instructions. The post reserved for the backward class category candidate at roster point 10 (i.e. the 10th post) has already been filled up and what is now being advertised and sought to be filled up is a post available for a general category candidate as per 14th roster point. Therefore, the contentions of the learned counsel for the petitioner that State of Haryana is not providing reservation qua posts and the one post of District Ayurvedic Officer being advertised now for direct recruitment has to be allotted to a backward class keeping in view the law laid down by the Constitution Bench in R.K. Sabbarwal's case (supra) , in the facts and circumstances of the present case, as discussed above, are wholly misplaced and hence rejected. Further in view the decision of the Hon'ble Supreme Court in Indira Sawheny's case and R.K. Sabbarwal's case (supra) State had amended the instructions dated 25.3.1975 vide instructions dated 25.6.1997 (Annexure R-2) which provide as under:- “If any member/members belonging to Scheduled Castes/ Backward Classes is/are selected in the open competition for direct recruitment on the basis of their own merit they will not be counted against the quota reserved for Scheduled Castes/ Backward Classes, they will be treated as open competition candidates. However, such candidates should fulfill condition, of eligibility regarding age etc. as are meant for general category candidates.” A reading of instructions dated 9.2.1979 (reproduced CWP No.15818 of 2007 -14- hereinabove) provide that reserved post not filled by the candidates should be carried forward for two recruitment years and the recruitment year shall mean a calendar year and the two years limit for carry forward of reserved posts shall start from the year when recruitment is actually made. Para 5 of the said instructions provide that reservation should be given both against permanent post or temporary as well as vacancies which may occur as a result of death, retirement, resignation, removal or dismissal or promotion on regular basis. Keeping in view the abovesaid contents of both the instructions, namely, 9.2.1979 and 25.6.1997, it can be seen from the affidavit dated 17.12.2007 of Dr. Paramjit Singh, Director, AYUSH that the post at 10th roster point reserved for backward classes was filled up by appointing Dr. Jai Kishan Sangwan selected against the advertisement dated 27.4.1998, by treating it to be a general post, since Dr. Mohinder Singh Soni, a backward class candidate had already been appointed to the service and thus deemed to have occupied the post at 10th reserved roster point for backward class, because reservation in the service had reached the prescribed percentage, as per reservation policy. Dr. Jai Singh Sangwan was appointed on 23.10.2001 and as per para 3 of the instructions this vacancy at 10th roster point could be carried for next two years only i.e. 2002 and 2003 as the same had been treated as unreserved and filled up by a general category candidate. Therefore, assuming that Dr. Mohinder Singh Soni cannot be deemed to occupy the 10th roster point reserved for backward class candidate, even then the argument of the learned counsel for the petitioner is bound to fail since the 10th roster point could not be carried forward beyond 2003, as laid down in the instructions referred to above. CWP No.15818 of 2007 -15- Thus, no relief, as claimed, can be granted to the petitioner. Therefore, from the above discussion, it is clear that the law laid down by the Hon'ble Supreme Court in R.K.Sabbarwal's case (supra) is not applicable to the facts of the present case and no fault can be found with the action of the respondents in advertising the one post of District Ayurvedic Officer (for General Category only) vide Advertisement No.06/2007, dated 21.6.2007(copy Annexure P-5). In view of the above, we find no merit in this writ petition, hence dismissed. No order as to costs. (Jaswant Singh) Judge March 4,.2008. (Jasbir Singh) joshi Judge