Case: MANDEEP KUMAR AND OTHERS Vs. U.T. CHANDIGARH &amp; OTHERS

candidate against a reserved vacancy, preference was given to Backward Classes candidates and vice versa, over other general candidates. This inter- changeability of reserved vacancies was withdrawn – vide para 4 of Punjab Government letter No. 13565- 4WG1-64/23892 dated 11th November, 1964, with the result that if a reserved vacancy is not filled by the candidate belonging to the particular category for which it is reserved it is carried forward in accordance with the current instructions, or, if this is not possible, it is thrown open to other generally. 2. This matter has been engaging the attention of Government for some time past and it has now been decided that after the carry forward rule has been exhausted and a suitable scheduled cast candidate has still not become available, a vacancy reserved for this category should first of all be offered to a candidate belonging to the Backward Classes, before it is thrown open for general recruitment. In case a Backward Class candidate avails of such a vacancy, the vacancy properly reserved for a Backward Class candidate later in the roster would then go to a Scheduled Caste candidate instead. 3. The receipt of this communication may please be acknowledged. 19. The clarification as issued vide letter No. 2/246/78- SW3/7416 dated 10.12.1979 written by the Secretary to Government of Punjab, Scheduled Caste and Backward Classes to all heads of Departments is also relevant however, reproduced as under: Subject: Reservation in services for members of Scheduled Castes and Backward Classes- Interchangeability of reserved posts between them. I am directed to invite a reference of Punjab Government letter No. 1346-SW1-74/11491 dated 20th June, 1994 and letter No. 771-SW1-76 dated 6th April, 1976, on the subject noted above, and to say while giving the benefits of interchangeability to a backward Class candidate and vice-versa, the Department do not obtain no-objection certificate from the Department of Welfare of Scheduled Castes and Backward Classes despite clear provision in the instructions. To make it clear, under the instructions, no-objection certificate is a must before the vacancy meant for Scheduled Castes person is offered to a Backward Class candidate and vice-versa. 2. Its receipt may please be acknowledged. 20. From the above it is clear that as per Section 7 of 2006 Act, de-reservation for the reserved vacancy by the appointing authority is restricted. The said de-reservation may be possibly directed by the Department of Welfare of Scheduled Castes and Backward Classes if it is expedient in public interest after recording satisfaction for such de- reservation. In the said contingency the department shall pass an order assigning those reasons. Thus, in the context of 2006 Act also the de-reservation or interchangeability may be possible with a rigour to exercise such power by the department, namely; Department of Scheduled Castes and Backward Classes and not by appointing authority. If we examine the Policy letter No. 1945-WG-54-17246 which was withdrawn on 11.11.1964, later restored vide letter dated 20.06.1974 makes it clear that those instructions are not in contravention of the provisions of Section 7 of the 2006 Act; in fact, it is as per the spirit of the 2006 Act. Therefore, in the net result, the interchangeability of the vacant unfilled posts of SC category may be possible due to not having eligible candidates by the department concerned but not by appointing authority. In the said context, the letters returned by the Education Department in favour of the appellants to the department concerned are not of much relevance in particular when the department concerned have not agreed upon the request of interchangeability of the unfilled posts of SC/ST category and refused to accept the request of the appointing authority. In addition to the aforesaid it is required to be observed in the manner in which the protest was started by the candidates of the OBC category was not justified. The High Court has rightly observed that steps taken by the protestors were unfortunate, improper and incorrect. The suo moto PIL No. 108-2019 was entertained to save the life of protesting youth, and it should not be influenced by misplaced notions and they may be counselled or guided by the authorities. However, after issuing the direction, the candidates of the OBC category were appointed in terms of their merit. Thereafter, by filing the miscellaneous applications and subsequent writ petitions the relief to fill up the vacant posts of SC/ST category from the candidates of the Backward Classes has been pressed upon, which has been rejected by the High Court by the order impugned. At this stage it cannot be lost sight that the merit list was prepared in furtherance to the advertisement of the year 2015-2016 and to accommodate the candidates of the said merit list. Thereafter interchangeability for unfilled 595 vacancies of SC/ST category has been prayed for. In our considered opinion, issuance of such direction after 6 years of notifying the selection list for filling up the unfilled vacancies of SC/ST category by OBC would be wholly unjustified. In addition, the selection list prepared in the year 2016 would not survive after the lapse of a long time to fill up the vacancies after interchangeability. It is to observe that rejection of claims of appellants by the departmental authorities relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy letter No. 17246 would not confer any right to appellants to claim the reliefs. Such an act of the departmental authorities may be deprecated but it would not confer any right to the appellants to seek direction of interchangeability of the unfilled 595 posts of ETT of SC/ST category to OBC category. Therefore, the argument advanced by learned senior counsel Mr. Patwalia in this regard is hereby repelled. As stated by the respondent, the process to fill up the vacant posts of ETT in the state has already been advertised, which is in accordance to law. Therefore, in view of the discussion made hereinabove, we are not inclined to grant the relief as prayed in this appeal.

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

Explanation:
0[ds]16. From the bare reading of the aforesaid, it is clear that de-reservation of any reserved vacancy which is to be filled up by direct recruitment or by promotion cannot be done by the appointing authority. In case due to non-availability of the eligible candidates of any of the category, the posts remain unfilled, the appointing authority may request to the Department of Welfare of Scheduled Castes and Backward Classes for de-reservation of the said unfilled vacancy. On such request after recording satisfaction, if necessary or expedient in the public interest, subject to the condition to carry forward the said vacancy against subsequent unreserved vacancy the order may be passed by the said department.20. From the above it is clear that as per Section 7 of 2006 Act, de-reservation for the reserved vacancy by the appointing authority is restricted. The said de-reservation may be possibly directed by the Department of Welfare of Scheduled Castes and Backward Classes if it is expedient in public interest after recording satisfaction for such de- reservation. In the said contingency the department shall pass an order assigning those reasons. Thus, in the context of 2006 Act also the de-reservation or interchangeability may be possible with a rigour to exercise such power by the department, namely; Department of Scheduled Castes and Backward Classes and not by appointing authority. If we examine the Policy letter No. 1945-WG-54-17246 which was withdrawn on 11.11.1964, later restored vide letter dated 20.06.1974 makes it clear that those instructions are not in contravention of the provisions of Section 7 of the 2006 Act; in fact, it is as per the spirit of the 2006 Act. Therefore, in the net result, the interchangeability of the vacant unfilled posts of SC category may be possible due to not having eligible candidates by the department concerned but not by appointing authority. In the said context, the letters returned by the Education Department in favour of the appellants to the department concerned are not of much relevance in particular when the department concerned have not agreed upon the request of interchangeability of the unfilled posts of SC/ST category and refused to accept the request of the appointing authority. In addition to the aforesaid it is required to be observed in the manner in which the protest was started by the candidates of the OBC category was not justified. The High Court has rightly observed that steps taken by the protestors were unfortunate, improper and incorrect. The suo moto PIL No. 108-2019 was entertained to save the life of protesting youth, and it should not be influenced by misplaced notions and they may be counselled or guided by the authorities. However, after issuing the direction, the candidates of the OBC category were appointed in terms of their merit. Thereafter, by filing the miscellaneous applications and subsequent writ petitions the relief to fill up the vacant posts of SC/ST category from the candidates of the Backward Classes has been pressed upon, which has been rejected by the High Court by the order impugned. At this stage it cannot be lost sight that the merit list was prepared in furtherance to the advertisement of the year 2015-2016 and to accommodate the candidates of the said merit list. Thereafter interchangeability for unfilled 595 vacancies of SC/ST category has been prayed for. In our considered opinion, issuance of such direction after 6 years of notifying the selection list for filling up the unfilled vacancies of SC/ST category by OBC would be wholly unjustified. In addition, the selection list prepared in the year 2016 would not survive after the lapse of a long time to fill up the vacancies after interchangeability. It is to observe that rejection of claims of appellants by the departmental authorities relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy letter No. 17246 would not confer any right to appellants to claim the reliefs. Such an act of the departmental authorities may be deprecated but it would not confer any right to the appellants to seek direction of interchangeability of the unfilled 595 posts of ETT of SC/ST category to OBC category. Therefore, the argument advanced by learned senior counsel Mr. Patwalia in this regard is hereby repelled. As stated by the respondent, the process to fill up the vacant posts of ETT in the state has already been advertised, which is in accordance to law. Therefore, in view of the discussion made hereinabove, we are not inclined to grant the relief as prayed in this appeal.