IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 10669-CAT of 2010 (O&M) Date of Decision: January 28, 2011 Bhupinder Kaur and others …Petitioners Versus Vanita and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. Deepak Sibal, Advocate, for the petitioners. Mr. Surinder Gandhi, Advocate, for respondent No. 1. Mr. Puneet Gupta, Advocate, for respondent Nos. 2 to 4. 1. To be referred to the Reporters or not? yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. This petition filed under Article 226 of the Constitution challenges order dated 5.1.2010 (P-2) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’) and also seeks quashing of show cause notices dated 19.5.2010 (P-3) issued by the official respondents to the petitioners for termination of their services pursuant to the direction issued by the Tribunal. 2. Brief facts of the case are that on 20.2.2006, the Director Principal, Government Medical College and Hospital, Sector 32, Chandigarh, issued an advertisement for filling up 40 posts of Staff Nurses on regular basis out of C.W.P. No. 10669-CAT of 2010 (O&M) which one post was reserved for the Schedule Caste Category. Thereafter in August 2006, another advertisement was issued by the Government of India for filling up 114 posts of Staff Nurses in the respondent-College out of which 9 posts were reserved for Scheduled Caste category. The petitioners as well as Ms. Vanita-respondent No. 1 applied for the said posts. It is pertinent to mention that Ms. Vanita belongs to reserved category of Scheduled Caste and she had been working as a Staff Nurse on contract basis in the respondent- College. On 26.11.2006, written test was conducted and thereafter interviews were held. Respondent No. 1 filed an Original Application being OA No. 220/CH/2007 before the Tribunal challenging the criteria adopted in the selection process of staff nurses, which was dismissed by the Tribunal. In December 2007, appointment letters were issued to the petitioners and they joined the service. 3. Respondent No. 1 again filed OA No. 809/CH/07 primarily on the ground that the persons belonging to the General Category, who are lower in merit than her, had been given appointment. The Tribunal issued notice in the said OA. On 29.2.2008, the official respondents disclosed to the Tribunal that a Committee has been set up by the Director, GMCH, Sector 32, Chandigarh, to review and reconsider the recruitment process to the posts of Staff Nurse, which were advertised in the year 2006 and interviews were held on 16/17-1-2007. In that regard a copy of the order dated 22.2.2008, was also placed before the Tribunal. Accordingly, the Tribunal disposed of the said OA vide order dated 29.2.2008 with a direction to the respondents to complete the process of review/reconsideration of the selection to the post of Staff Nurses as per law within a period of two months from the date of receipt of a copy of the order. The Tribunal further granted liberty to respondent No. 1 to file a fresh 2 C.W.P. No. 10669-CAT of 2010 (O&M) O.A. in case she felt dissatisfied (A-1). She also filed a Contempt Petition No. 56 of 2008 and in response thereto the respondents in their reply stated that a Committee was constituted which found that 25 candidates were wrongly appointed on the post of Staff Nurse. The Tribunal disposed of the Contempt Petition with liberty to respondent No. 1 to challenge the review process and the order passed thereon. 4. Thereafter, respondent No. 1 again filed OA No. 209/PB/2009, inter alia, alleging that the candidates belonging to the General Category, who secured 53 marks were selected and appointed whereas despite the fact that she has secured 55 marks, she has been denied appointment on the ground that she belongs to Scheduled Caste category. She claimed that if a candidate belonging to reserved category secures higher marks than the candidate belonging to General Category then such a person would not consume a reserved post/vacancy and deserves to be adjusted against a vacancy/post belonging to General category. In that regard reliance was placed on various judgments of Hon’ble the Supreme Court including the judgment rendered in the case of R.K. Sabharwal v. State of Punjab, AIR 1995 SC 1371 and a judgment of this Court rendered in the case of Jaskaran Singh v. State of Punjab, 1995 (1) RSJ 510. Respondent No. 1 after obtaining information under the Right to Information Act, 2005, also placed on record final select lists as Annexure A-3. 5. The Tribunal has categorically observed that the respondents have selected candidates of General Category with lesser marks and denied appointment to the original applicant-respondent No. 1 on the basis of her merit by assessing her candidature only against the reserved vacancies meant for Scheduled Caste category. It has further been pointed out that 11 Scheduled 3 C.W.P. No. 10669-CAT of 2010 (O&M) Caste candidates appointed against reserved vacancies have scored 57 or more marks, whereas 6 candidates selected in the General category have scored only 56 marks who were given berth in the select list. After extracting the observations made by the Constitution Bench of Hon’ble the Supreme Court in R.K. Sabharwal’s case (supra) as also observations made by this Court in Jaskaran Singh’s case (supra) and view of the Gujarat High Court in the case of Sida Nitinkumar Laxmankumar Laxmanbhai v. Gujarat University, A.I.R. 1991 Gujarat 43, the Tribunal finally disposed of the OA by observing as under:- “The respondents have stated that they have appointed top 86 general category candidates against 86 unreserved vacancies and 11 SC category candidates have been appointed against the vacancies meant for them. This clearly shows that the respondents have deviated from the law/principle settled by the Courts while preparing the Select list. The law is that if a reserved category candidate has been able to make grade in higher merit, he is not to be adjusted against the reserved vacancies, but has to be treated as a general category candidate. It appears that the respondents have considered the merit of all SC category candidates against the vacancies meant for them, notwithstanding the fact that they may have scored more marks than the general category candidates, who have found place in the panel. This certainly is not the preposition of law enunciated by the courts. In view thereof, the select list prepared by them is arbitrary, against law and deserves to be quashed. 4 C.W.P. No. 10669-CAT of 2010 (O&M) In view of the above, the concerned respondents are directed to prepare a revised select panel strictly in accordance with law laid down in the aforesaid cases and if it is found that the applicant or other candidate from reserved category has secured more marks than the general category candidates with lower merit but appointed as Staff Nurse than such candidate has to go after giving him/her a show cause notice. In that event, the applicant and other similarly situated Nurses would have the right to be appointed as Staff Nurse from the date other selected candidates have been appointed and they will also be entitled to the benefit of arrears of pay and seniority etc. This exercise must be completed within a period of one month from the date of receipt of copy of this order. ………” 6. In pursuance to the above direction, the respondent-College issued show cause notices, dated 19.5.2010 to the petitioners. The relevant portion of the show cause notice reads thus:- “Now a combined/ranking list was recasted/redrafted by this institute on the basis of selection record available with it for all 410 candidates declared to be eligible for selection of 154 Staff Nurses at that time. According to the new combined merit list, it has been found that this institute has offered the appointment to the General Category candidates upto having a ranking of 53 marks on the plea that appointment on a subsequent vacancy is to be made from the waiting list of the respective category i.e. General, OBC & SC separately, therefore, the following candidates belonging to General Category have been found having to be falling under consideration 5 C.W.P. No. 10669-CAT of 2010 (O&M) for the issue of Show Cause Notice without prejudices to their rights and claim due to their falling in the category wise merit list subject to the availability of posts after following the due process of law and ascertaining the recovery/payment of bond money as may be applicable as per terms of your appointment as well as the service rules as per affidavit filled by this institute dated 16.7.08. You are therefore called upon as to show cause notice why your services may not be terminated.” 7. Feeling aggrieved, the petitioners have challenged the order dated 5.1.2010 (P-2) passed by the Tribunal and the show cause notice dated 19.5.2010 (P-3) alleging that the advertisements were issued in the year 2006 and appointments were made in the year 2007, whereas the original applicant- respondent No. 1 filed the original application after a period of 2½ years, which is beyond the period of limitation to approach the Tribunal. Moreover, no candidate other than respondent No. 1 has approached the Tribunal and once they were not vigilant and slept over their rights, the Tribunal cannot grant relief to such candidates by directing the official respondents to recast the entire select list. The petitioners have also claimed that they have successfully completed their probation period of two years. It has also been submitted that all the petitioners have already crossed the age of 25 years, which is the maximum age prescribed for appointment to the respondent-College. Some of them have become overage and cannot apply in other institutions. It is not a case of concealment or misrepresentation on their part, thus, they cannot be punished for no fault. It has further been pointed out that as on 29.3.2010, 47 regular posts of Staff Nurses were lying vacant and thereafter no selection has taken place. 6 C.W.P. No. 10669-CAT of 2010 (O&M) Thus, the petitioners can be adjusted against those vacant posts. In that regard, reliance has been placed on various judgments of this Court rendered in the cases of Sham Sunder v. State of Haryana (CWP No. 10345 of 2007, decided on 18.2.2009; Ramesh Kumar v. State of Punjab (CWP No. 7062 of 2003, decided on 1.7.2004); Atul v. State of Haryana and another (CWP No. 7302 of 2001, decided on 19.2.2003). 8. On 28.5.2010, while issuing notice of motion, this Court passed an interim order directing that the petitioners may file their replies to the show cause notice but their services were not to be dispensed with. On 7.9.2010, when the matter came up for hearing, we heard the arguments at some length and noticed some aspects as under:- “ We have heard arguments at some length and found that the petitioners had approached this Court at the stage when the show cause notice issued to them is pending before the authority. Petitioners have filed their reply and other candidates belonging to reserved category who are meritorious than the petitioners have not yet been located to implement the directions issued by the Tribunal. The respondents are yet to undertake an exercise to find out how many meritorious candidates belonging to reserved category are available. The show cause notices have been issued to the petitioners without undertaking any such exercise. The result could be that meritorious reserved category candidates might not be available and all of the petitioners may not require to be removed from service. Mr. Puneet Gupta, learned counsel for respondents No. 7 C.W.P. No. 10669-CAT of 2010 (O&M) 2 to 4 states that every effort shall be made to complete this exercise within four weeks and an affidavit to that effect shall be filed. Accordingly, hearing is deferred to 11.10.2010.” 9. Thereafter, the petitioners filed C.M. No. 15468 of 2010, seeking clarification of the order dated 7.9.2010 and for further issuance of directions to the respondents not to seek consent and appointment to Other Backward Class candidates and to keep 10 posts of Staff Nurses vacant in the respondent College. It has been submitted in the said application that a public notice dated 26.9.2010 was issued by the respondents seeking consent for appointment of the Scheduled Castes category persons who had more marks than the petitioners. In pursuance to the said public notice only three persons gave their consent who have secured more marks than the petitioners and interested to join. The petitioners have also placed on record another public notice dated 24.10.2010 issued by the respondents seeking consent for appointment, in preference to the petitioners, from candidates belonging to the Other Backward Class category (P- 7). 10. The Director-Principal, GMCH, also filed an affidavit dated 9.11.2010. A combined list of all the 410 candidates, which was prepared on the basis of marks secured by the candidates after interview, has also been placed on record as Annexure A-1 with the said affidavit. A perusal of various paras of the affidavit reveals that there have been drastic changes in the merit list after carrying out the reshuffling in terms of the directions issued by the Tribunal. In para 2 of the affidavit bifurcation of the total 154 posts of Staff Nurses, which were advertised in the year 2006, has been given, which is as under: Seats No. of seats General (unreserved) 86 8 C.W.P. No. 10669-CAT of 2010 (O&M) OBC 57 SC 11 Total 154 11. In para 7 of the affidavit it has been stated that a total of 27 seats are to be allocated in General category to the candidates belonging to reserved category on the basis of their higher merit than the General category candidates. Accordingly, services of 27 General category candidates would be required to be terminated due to their low merit. However, in para 8 it has further been disclosed that out of these 27 General category candidates, 13 candidates either have resigned or their services have already been terminated. Thus, at present there are only 14 candidates whose services are required to be dispensed with. Out of these 14, show cause notices to 12 candidates have already been issued and after carrying out the said exercise, show cause notices to remaining two candidates, namely Mr. Jaswant singh Shekhawat and Ms. Anu Bala Francis are being issued. Further, Ms. Harpreet Kaur-petitioner No. 11, who belongs to General Category with a score of 53 marks was given appointment, has resigned from service w.e.f. 3.9.2010, which has been accepted. As per para 9 of the affidavit, after final assessment 12 candidates are required to be removed from service. Para 11 of the affidavit discloses the details of 10 candidates from Scheduled Caste category who would consume the posts in General Category, whereas para 12 contains the names of 11 Scheduled Caste candidates who would be considered under SC quota. The name of the original applicant- respondent No. 1 figures at Sr. No. 8 of the table given in para 12 of the affidavit. A bare perusal of para 15 shows that out of 17 Scheduled Caste category candidates, whose consent was sought, 7 have consented; 2 have 9 C.W.P. No. 10669-CAT of 2010 (O&M) refused to join; and remaining 8 have not responded as yet. The seats of those candidates who have been issued consent letters and not responded would be offered to the candidates next in merit. 12. In so far as candidates belonging to the OBC category are concerned, 17 candidates have marched over to the General Category posts (A- 9) and rest of the 57 OBC candidates are placed in order of their merit against the seats meant for OBC category (A-10). Out of 57 OBC posts, appointment letters to 39 candidates were already correctly issued under the previous list. Now 18 candidates have been issued consent letters dated 23.10.2010 and a public notice has also been issued (A-7 and A-8). Consent from 9 OBC candidates has already been received and from the remaining 9 it is awaited. In para 19 of the affidavit it has been stated that the respondents are in the process of issuing appointment letter to the original applicant-respondent No. 1. 13. We have heard learned counsel for the parties at length and are of the view that the directions issued by the Tribunal are unassailable. It is well settled that a candidate belonging to reserved category who has been selected and appointed on his own merit by securing higher merit than the merit of a General Category candidate would not be considered to be appointed against the post/vacancy reserved for a candidate belonging to reserved category. In that regard reliance may be placed on a judgment of Hon’ble the Supreme Court rendered in the case of Ritesh R. Sah v. Y.L. Yamul (Dr.), (1996) 3 SCC 253. The aforesaid case belongs to admission to a professional college and the observation made by their Lordships’ of Hon’ble the Supreme Court would be equally applicable to the present case which read as under: “ There is sufficient force in the contention of the petitioner. A student who is entitled to be admitted on the 10 C.W.P. No. 10669-CAT of 2010 (O&M) basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but in computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate.” 14. Similar view has been expressed by Hon’ble the Supreme Court in the case of Anurag Patel v. U.P. Public Service Commission, (2005) 9 SCC 742 and Yoganand Vishwasrao Patil v. State of Maharashtra, (2005) 12 SCC 311. In these two cases also the same principle has been applied and followed. 11 C.W.P. No. 10669-CAT of 2010 (O&M) The law on the subject, therefore, is that a candidate belonging to reserved category securing better merit position than those of General category would consume a General category point because reservation has been made for the reserved category candidate and not for the General category candidate. The respondent-College, in fact, has taken the view as if the reservation between the General category candidates and reserved category candidates has been made in two watertight compartments, which is wholly illegal. On the direction issued by the Tribunal, an exercise was undertaken which revealed that a number of meritorious reserved category candidates were refused appointments on the post of Staff Nurses, whereas the less meritorious candidates belonging to General category were given appointments. By virtue of interlocutory order passed by us on 07.09.2010, we required the authorities to go into the question of availability of meritorious reserved category candidates. It would be futile to remove the General category candidates in the absence of availability of reserved category candidates to occupy the post on their own merit. The respondent- College has undertaken an exercise in the right earnest and some meritorious candidates belonging to reserved category have come forward to join which would necessitate replacement of General category candidates by such meritorious reserved category candidates. 15. The argument raised by the learned counsel for the petitioners is that the Original Application was filed only by one candidate belonging to reserved category and there could not be a direction issued by the Tribunal to recast the whole list. We find no merit in the aforesaid submission because once a patent illegality has come to the notice of the Tribunal or any other Court then it is a duty cast on the Courts to ensure compliance with the law rather than permitting the illegality to perpetuate. Moreover, law declared by Hon’ble the Supreme 12 C.W.P. No. 10669-CAT of 2010 (O&M) Court is binding on all the authorities including the State and it must enforce the directions effectively. The Constitution mandates the State to ensure enforcement of order passed by Hon’ble the Supreme Court and any attempt to bye-pass the directions so issued is viewed with seriousness. Therefore, the Tribunal could not have confined the relief of recasting the merit list as per law only in respect of respondent No. 1. It has to be undertaken in respect of all those meritorious candidates belonging to reserved category who have secured more marks than the last candidate belonging to General category, even though it results into relieving of some candidates belonging to General category. Thus, we find no merit in the aforesaid contention raised by the learned counsel for the petitioners. 16. We hope and trust that the respondent-College would not commit similar mistake in future and would keep the law laid down by Hon’ble the Supreme Court in view of the judgment like Ritesh R. Sah’s case (supra), Anurag Patel’s case (supra) and Yoganand Vishwasrao Patil’s case (supra). 17. Subject to the aforesaid observations, we find no merit in the instant petition and accordingly, the same is dismissed. (M.M. KUMAR) JUDGE (RITU BAHRI) January 28 , 2011 JUDGE Pkapoor/Atul 13