Case: GURMEET PAL SINGH Vs. STATE OF PUNJAB

absorption of the Judges from the Fast Track court. The moot point, however, remains whether one of the vacancies in the advertisement, which arose ought to have been utilized for absorption of these Fast Track court Judges, which, in turn, affected the senior- most, i.e., Gurmeet Pal Singh. In a way, Gurmeet Pal Singh suffered the consequences both of a more meritorious candidate from the SC category being found eligible, because of which he went one slot down. But then it is a well-established legal position that members belonging to the reserved category, who get selected in open competition on the basis of their merit have a right to be included in the General/Unreserved category and are not to be included in the quota reserved for the SC category (Samta Andolan Samiti v. Union of India 2 ).13. Insofar as the adjustment against the seat which was made available on account of the wrongful reservation for Ex-Servicemen, we cannot lose sight of the fact that the said Mr. Gurmeet Pal Singh made an endeavour by taking three successive subsequent exams held on 08.04.2011, 02.01.2012 and 29.04.2013, but was unsuccessful (chart reproduced above). Not only that, there has been a passage of a decade since the initial recruitment and though the appellants cannot be blamed for judicial delays, it is really not possible to put the clock back for all the aforesaid reasons.14. We are, thus, not inclined on this aspect to interfere with the recruitment process.D. Non-availability of candidate with disability:15. The plea based on an inherent right in view of the wording of the advertisement qua the seat meant for person with disability when no candidate is available is intrinsically flawed. The provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, are towards the social objective of accommodating people with physical disability. We find nothing wrong in carrying forward the vacancy for the future.E. The larger recruitment was possible since the cadre strength was more:16. The undisputed fact is that the advertisement was issued on the basis of a cadre strength of 107. Twenty-seven (27) posts would arise in the category in question and six (6) were already occupied and, thus, the advertisement was issued for twenty-one (21) posts. The advertisement was not challenged by any of the appellants. It is a well settled principle of law that when a candidate appears in an examination without objection and is subsequently found to be not successful a challenge to the process is precluded. In a recent judgment in Ashok Kumar & Anr. v. State of Bihar & Ors. 3 , this principle has been re-emphasised by referring to the earlier judgments on this point starting from Chandra Prakash Tiwari v. Shakuntala Shukla 4 . Thus, undoubtedly the appellants not having challenged the advertisement at the relevant point of time, cannot be permitted to contend that having not made the mark in the cut off for the select list, something must be done to somehow accommodate them. The plea of the existence of a larger number of posts is in this direction. No doubt every endeavor should be made to fill up the existing vacancies and prospective vacancies keeping in mind the judgment in Malik Mazhar Sultan & Anr. v. U.P . Public Service Commission & Ors. 5 . However, there cannot be a blanket proposition that the advertisement is defective merely because every vacancy which existed or which is contemplated is not taken into account. Certainly, a subsequent vacancy arising from an elevation can hardly be treated as in contemplation.17. We agree with the contention advanced by learned counsel appearing for the High Court, more so when merely because the name of a candidate finds a place in the select merit list does not given an indefeasible right to appointment as well and it is always open to not even fill up a vacancy. (Kulwinder Pal Singh & Anr. v. State of Punjab & Ors. 6 ).18. It is also the plea of learned counsel appearing for respondent No.2 that the cadre consisted of only 107 posts. This is stated to be quite apparent from the gradation and distribution list of officers of The Judicial Department, Punjab corrected up to 01.01.2008. The strength, including permanent and temporary has been mentioned as 109. However, at serial No.6, under the temporary post are two temporary posts of Additional District & Sessions Judges sanctioned by the Punjab Government letter dated 27.01.2004 for setting up of special courts at Patiala and Jalandhar. These courts were actually not set up till much later. It was also contended that even if the cadre strength was 109, then the particular category would be entitled to 27.25 (25% of 109 = 27.25) posts, with this six (6) posts filled up. Therefore, once again, one would come to 21 posts. The cadre strength of 111 relied upon by the appellants is available from the Gradation and Distribution List of Officers of the Judicial Department, Punjab corrected up to 31.01.2010, i.e., which was subsequent to the advertisement and the recruitment process. Thus, the appellants cannot get any relief even on this ground.Conclusion:19. We have dealt with the pleas advanced before us on behalf of the appellants. We have, of course, perused the impugned order. We may note that the line of attack before the High Court appeared majorly to be on different pleas, though it cannot be said that the issues raised before us have been raised for the first time. The focus was, however, elsewhere. We have, thus, dealt with the pleas, which have been advanced before us.20. We are, thus, unable to grant any relief to the appellants in the present case.21. We may, however, note in the end that one of the appellants, Ms. Kadambini, Advocate, argued the appeal in person and, without taking anything away from the endeavour of the other learned senior counsel, did a commendable job. However, that cannot be a ground to accommodate the said appellant.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. The elevation of Justice Sabina on 12.03.2008 is a matter of fact. It is not also in dispute that the advertisement was issued prior to such elevation on 02.02.2008 and the advertisement noted the possibility of the number of posts being subject to variation. However, in our view, this would not mandate the inclusion of a post which fell vacant subsequently, nor can there be even otherwise a compulsion on the High Court to necessarily expand the scope of the number of persons to be recruited. In fact, the persons, who may have become eligible post the advertisement would suffer a prejudice were subsequent vacant posts to be included against an earlier advertisement. The plea based on the vacancy of this seat is, thus, completely devoid of merit.Insofar as the adjustment against the seat which was made available on account of the wrongful reservation forwe cannot lose sight of the fact that the said Mr. Gurmeet Pal Singh made an endeavour by taking three successive subsequent exams heldon 08.04.2011, 02.01.2012 and 29.04.2013, but was unsuccessful (chart reproduced above). Not only that, there has been a passage of a decade since the initial recruitment and though the appellants cannot be blamed for judicial delays, it is really not possible to put the clock back for all the aforesaid reasons.14. We are, thus, not inclined on this aspect to interfere with the recruitment process.The plea based on an inherent right in view of the wording of the advertisement qua the seat meant for person with disability when no candidate is available is intrinsically flawed. The provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, are towards the social objective of accommodating people with physical disability. We find nothing wrong in carrying forward the vacancy for the future.The undisputed fact is that the advertisement was issued on the basis of a cadre strength of 107.(27) posts would arise in the category in question and six (6) were already occupied and, thus, the advertisement was issued for(21) posts. The advertisement was not challenged by any of the appellants. It is a well settled principle of law that when a candidate appears in an examination without objection and is subsequently found to be not successful a challenge to the process isundoubtedly the appellants not having challenged the advertisement at the relevant point of time, cannot be permitted to contend that having not made the mark in the cut off for the select list, something must be done to somehow accommodate them. The plea of the existence of a larger number of posts is in this direction. No doubt every endeavor should be made to fill up the existing vacancies and prospective vacancies keeping in mind the judgment in Malik Mazhar Sultan & Anr. v. U.P . Public Service Commission & Ors. 5 . However, there cannot be a blanket proposition that the advertisement isdefective merely because every vacancy which existed or which is contemplated is not taken into account. Certainly, a subsequent vacancy arising from an elevation can hardly be treated as in contemplation.17. We agree with the contention advanced by learned counsel appearing for the High Court, more so when merely because the name of a candidate finds a place in the select merit list does not given an indefeasible right to appointment as well and it is always open to not even fill up a vacancy.We have dealt with the pleas advanced before us on behalf of the appellants. We have, of course, perused the impugned order. We may note that the line of attack before the High Court appeared majorly to be on different pleas, though it cannot be said that the issues raised before us have been raised for the first time. The focus was, however, elsewhere. We have, thus, dealt with the pleas, which have been advanced before us.20. We are, thus, unable to grant any relief to the appellants in the present case.