Case: GURMEET PAL SINGH Vs. STATE OF PUNJAB

1. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Punjab Superior Judicial Service Rules, 2007 (hereinafter referred to as the ‘saidwere notified on 31.08.2007 duly published in the Gazette of 03.09.2007 for regulating the recruitment and the conditions of service of the persons appointed to the Punjab Superior Judicial Service. The method of appointment as per Rule 7 of the said Rules was both from amongst the members of the Punjab Civil Service (Judicial Branch), as well as direct appointment from amongst the eligible advocates on the basis of written test andconducted by the High Court.ule (3) of Rule 7 dealt with the latter direct appointment for which 25 per cent of the posts were reserved.In terms of the aforesaid advertisement, applications were invited for selection of twenty one (21) candidates, with a further breakup of ten (10) from General category, six (6) from Scheduled Castecategory, two (2) from Backward Class category, one (1) from(General) category, one (1) from B.C. (ExServiceman) category and one (1) from Physically Challenged category of Locomotor or Orthopedic Disability, under Rule 7(3)(c) of the said Rules. It may be noted that the advertisement also stated that ‘the number of posts will be subject toNote 4 to the advertisement qua the Physically Challenged category also statedno candidate is found suitable or medically fit under this category, the post shall be reverted to the General category candidate.The appellants before this Court are all candidates, who appeared for the examination. It may be noted that none had assailed the advertisement on any account prior to the declaration of the result. On declaration of the result of the written examination,was held and there was variation in the merit position of the candidates in the combined marks as compared with just the written examination. The appellants all belong to the General category and their merit position was beyond the ten (10) candidates whose recruitment was envisaged under the advertisement. It may be noted that one of the SC candidates obtained marks to merit consideration without the benefit of reservation and consequently nine (9) of the General category candidates were recruited against the ten (10) posts.There were five developments, which need to be taken note of, in view of the pleas advanced on behalf of the appellants. The first was the elevation of Justice Sabina as a Judge of the High Court of Punjab & Haryana onsecond is arising from a defect in the advertisement inasmuch as no reservation forwas envisaged, as Rule 3 of the Punjab Recruitment ofRules, 1982 (hereinafter referred to as the) exempted the applicability of these Rules to the Punjab Vidhan Sabha Secretariat Service and the Punjab Superior Judicial Service. The High Court also took cognizance of this fact and, thus, the reservation being not in accordance with law, resolved appropriately in a meeting of the Judges held on 25.07.2008. The meeting noted that the vacancy, which was advertised as(General) category should also go to the General category. Thus, a second seat as per the appellants became available for the General category. The third is the absorption of two Presiding Officers of Fast Track courts against which vacancies for direct recruitment purportedly under Rule 7(2) of the said Rules even though the present recruitment exercise was under Rule 7(3) of the said Rules. Fourthly, no candidate was available in the physically challenged category, but instead of carrying it to the General category as per Note 4 of the advertisement, the vacancy was carried forward. Finally, the advertisement was issued on the basis of a total cadre strength of 107 posts, while actually the total cadre strength on the date of advertisement was 111, i.e., there were four more posts, which could have been filled in and the General category would have got two more seats and two more candidates could have been absorbed in the General category.5. The endeavor of the appellants by filing writ petitions before the Punjab and Haryana High Court, however, was not successful and in terms of the common judgment dated 19.08.2013 all the writ petitions were dismissed. In the course of the last decade since the recruitment process took place in the year 2008, similar recruitment of advocates was carried out five times through different notifications. Three of the candidates before this Court took their chances in different examinations.

Reasoning:
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.