C.W.P No. 3031 of 2007 (O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 3031 of 2007 (O&M) Date of decision : July 07, 2010 Kamlesh, ...... Petitioner (s) v. State of Punjab and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Randeep Singh, Advocate for the petitioner. Mr. S.S.Gill, DAG Punjab for respondents No.1 & 4. *** 1. Whether Reporters of Local Newspapers 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 ? *** AJAY TEWARI, J (Oral) The petitioner has challenged the appointment of respondent No.5 as Primary Teacher on the admitted ground that she had achieved higher merit position than him. Both of them are Scheduled Castes. In reply, the defence taken is that respondent No.1 has enacted the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006, and as per Section 4(5) thereof, 50% of the vacancies reserved for Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhabi Sikhs and they shall be given preference over the C.W.P No. 3031 of 2007 (O&M) ::2:: other Scheduled Castes. The Municipal Council, Nurmahal which had made appointments, in its reply stated that it was bound by the said Act and since there was only one reserved vacancy, the same was given to respondent No.5 notwithstanding the fact that the petitioner stood higher in merit. Counsel for the petitioner has relied upon Gurmail Singh vs The State of Punjab and others, 2008(1)SLR 23, wherein a Division Bench of this Court held as follows :- “5. We do not find any merit in the contention raised on behalf of the petitioner, in view of judgment of the Hon'ble Supreme Court in E.V.Chinnaiah (supra). Therein, it was held that any executive action or legislative enactment which interferes with the castes found in the Presidential list, will be violative of the Constitution and that all castes in the Presidential list formed one class. Any sub classification or micro classification of the castes mentioned therein will be violative of Article 14 of the Constitution. It was also held that the State Legislature had no jurisdiction to enact the law, regrouping the castes, mentioned in Presidential list, in further classes, the same being beyond the purview of Articles 15(4), 16(4), Entry 41 of List II or Entry 25 of List III to the Seventh Schedule. Thus, the provisions of Section 4(5) of the Act relied upon on behalf of the petitioner, are unconstitutional, in view of Constitution of Bench judgment of the Hon'ble C.W.P No. 3031 of 2007 (O&M) ::3:: Supreme Court in EV Chinnaiah (supra).” In this position of law, the appointment of respondent No.5 over and above the petitioner has to be held illegal. Consequently, this writ petition is allowed, the selection of respondent No.5 as Primary Teacher under respondents No.2 and 3, is set aside and respondents No.2 and 3 are directed to consider the petitioner for appointment as per her merit. Let the needful be done within a period of two months from the receipt of a certified copy of this order. No cost. As the main petition has since been disposed of, all the pending civil miscellaneous applications, if any, also stand disposed of. ( AJAY TEWARI ) July 07, 2010. JUDGE `kk'