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Article 16(4) in The Constitution Of India 1949
Article 335 in The Constitution Of India 1949
THE ALL INDIA SERVICES ACT, 1951
Article 16 in The Constitution Of India 1949
Article 309 in The Constitution Of India 1949

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Punjab-Haryana High Court
Cwp No. 1023 Of 2011 Date Of ... vs Punjab Public Service Commission ... on 3 June, 2011

IN THE HIGH COURT OF PUNJAB & HARYANA AT

CHANDIGARH

1. CWP No. 1023 of 2011 Date of Decision: 3.6.2011. Paramveer Singh and others --Petitioners Versus

Punjab Public Service Commission & others --Respondents

2. CWP No.528 of 2011

Simar Preet Kaur --Petitioner Versus

Punjab Public Service Commission --Respondent

3. CWP No.648 of 2011

Gur Jai Pal Singh --Petitioner Versus

Punjab Public Service Commission & another --Respondents

4. CWP No.823 of 2011(O&M)

Sukhpal Singh --Petitioner Versus

Punjab Public Service Commission & another --Respondents

5. CWP No.2435 of 2011

Gursharan Singh --Petitioner Versus

Punjab Public Service Commission & another --Respondents

6. CWP No.2436 of 2011

Harnek Singh & another --Petitioners Versus

Punjab Public Service Commission & another --Respondents

7. CWP No.2507 of 2011

Maninder Partap Singh --Petitioner Versus

Punjab Public Service Commission & another --Respondents

8. CWP No.2553 of 2011

Karamvir Singh --Petitioner Versus

Punjab Public Service Commission & another --Respondents CWP No. 1023 of 2011 -2-

9. CWP No.2666 of 2011

Manpreet Kaur & others --Petitioners Versus

Punjab Public Service Commission & others --Respondents

10. CWP No.2688 of 2011

Ravinder Kaur --Petitioner Versus

Punjab Public Service Commission & another --Respondents

11. CWP No.2735 of 2011

Ravinderjeet Singh --Petitioner Versus

Punjab Public Service Commission & another --Respondents

12. CWP No.4682 of 2011

Kamaljit Singh & another --Petitioners Versus

Punjab Public Service Commission & another --Respondents

13. CWP No.6522 of 2011

Manpreet Singh --Petitioner Versus

Punjab Public Service Commission & others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI.

Present:- Mr. Pawan Kumar, Sr. Advocate with

Mr. Saquib Ali Khan, Advocate.

Mr. Jagdeep Singh, Mr. H.C. Arora, Mr. S.L. Chander Shekhar, Mr. G.N. Malik, Mr. Harsh Aggarwal, Mr. P.S. Khurana, Mr. B.S. Sewak, Mr. G.L. Bajaj, Ms. Jyoti Sarin, Mr. Gurmohan Singh, Mr. H.C. Arora, Advocates for the petitioners.

Mr. Puneet Gupta, Addl. A.G., Punjab.

Ms. Anu Pal, A.A.G., Punjab.

***

PERMOD KOHLI.J (ORAL)

Faced with the common factual premises and questions of law,

all these petitions are being disposed of by this common order.

In view of the common questions replies filed by the State of

Punjab and Punjab Public Service Commission in C.W.P. No. 1023 of 2011 CWP No. 1023 of 2011 -3-

have also been treated as common replies in all these writ petitions.

The Punjab Public Service Commission (hereinafter referred to

as the Commission) i.e respondent no.1 issued an advertisement dated

26.11.2009 inviting applications for filling up of 143 posts through Punjab

Civil Services Combined Competitive Examination, 2009. Initially 143

posts were advertised, however, by a corrigendum dated 21.12.2009 issued

by the Commission, posts of Excise & Taxation Officers were increased

from 37 to 74 distributed in various categories. Thus, the total number of

seats brought within the purview of aforementioned examination came to

180.

Appointment to Punjab Civil Services (Executive Branch) is

regulated by the statutory rules framed under proviso to Article 309 namely

Punjab Civil Services (Executive Branch) (Class-I), Rules, 1976. Rule 7

deals with the appointment to the service and reads as under:-

" 7. Appointment to the Service shall be made in manner herein provided from amongst accepted candidates whose names have been duly entered in accordance with these rules in the Registers of accepted candidates to be maintained under these rules."

Rule 8 deals with the Registers to be maintained. Under Rule 8

as many as five types of Registers are to be maintained. Register A-1, A-2,

A-3 and 'C' deal with the appointment to the service from the in service

candidates from various feeding services of the State of Punjab, whereas

Register 'B' deals with the direct recruitment on the basis of main

competitive examination. Rule 8(4) reads as under:-

"8. The following Registers of accepted candidates shall be maintained by the Chief Secretary to Govt., Punjab namely:- (4) Register B in which shall be entered the name of persons accepted as candidates as a result of the main competitive examination CWP No. 1023 of 2011 -4- and."

Rule 14 deals with the inclusion of the qualified candidates in

the main competitive examination in Register 'B' subject to the provisions of

Rules 13 and 13-A. Rules 12 and 13 deal with the conduct of the

preliminary competitive examination and admission of candidates to the

preliminary competitive examination respectively, whereas Rule 13-A deals

with the main competitive examination to be held for selection of

candidates. These rules are reproduced hereunder:-

" 12. (1) A preliminary competitive examination, the regulations of which are contained in Appendix II of these rules, shall be held at any place in the State of Punjab as and when notified by the Govt. through the Commission for the purpose of selection of candidates for admission to the main competitive examination as specified in rule 13-A. (2) Notice of the date fixed for the preliminary competitive examination shall be published in the Punjab Govt. Gazette.

13.(1) Applications for permission to sit in the preliminary competitive examination will be called by the Commission and shall be made in the manner and form prescribed and accompanied by such documents or papers as may be required by the Commission in this behalf. (2) No person shall be allowed to appear in the preliminary competitive examination.

(a) who has not attained the age of twenty one years or who will have attained the age of twenty seven years on the last date fixed by the Commission for submission of applications:-

Provided that the upper age limit may be relaxed by the Govt. from time to time:

Provided further that in the case of a candidate who belongs to Scheduled Castes or Backward Classes, the upper age limit shall be such as may, from time to time, be fixed by the Govt. in respect of entry into service under the State of persons belonging to such castes or classes. (b) who does not possess at least a bachelor's degree of a recognized university in Arts, Science or Commerce; and (c) who does not by the closing date for receipt of CWP No. 1023 of 2011 -5- applications to be notified by the Commission send a crossed Bank Draft drawn in favour of Secretary, Punjab Public Service Commission payable at Patiala on account of non-refundable examination fee as fixed by the Commission:

Provided that a Govt. servant holding a ministerial appointment under the Punjab Govt. including Courts, who has not less than four years continuous service under the Govt. on the last date fixed by the Commission for submission of applications, shall be eligible to appear in the examination if he possesses at least a Bachelor's degree of a recognized university in Arts, Science or Commerce and has not attained the age of thirty eight years subject to the condition that he has not availed of three chances in addition to those which he might have already availed of in any other capacity.

Note:- Any person who is eligible as Govt. servant under this rule and wishes to appear in the examination, shall submit his application in the prescribed form through the Head of his office to the Secretary to the Commission.

13-A (1) A main competitive examination, the regulations of which are contained in Appendix III of these rules, shall be held at any place in the State of Punjab as and when notified by the Govt. through the Commission for the purpose of selection by competition of as many candidates for the service as Govt. may determine. (2) Notice of the date fixed for the main competitive examination shall be published in the Punjab Govt. Gazette. (3) No candidate shall be allowed to sit in the main competitive examination, unless he has qualified the preliminary competitive examination in terms of the provision of rule 12. (4) The total number of candidates to be admitted to the main competitive examination shall not exceed thirteen times the total number of vacancies determined by the Govt. under sub rule (1)."

The Commission also issued brochure for Punjab State Civil

Service Combined Competitive Examination, 2009. The brochure contains

entire information in respect to the number of vacancies, categorywise break

up, the conditions relating to preliminary and main competitive examination CWP No. 1023 of 2011 -6-

and other details regarding the examination centres etc. As per the brochure

the preliminary competitive examination consist of two papers in the

following manner:-

" PRELIMINARY PUNJAB STATE CIVIL SERVICE

COMBINED COMPETITIVE EXAMINATION

1. The preliminary competitive examination will consist of two papers of objective type (multiple choice questions) and carry a maximum of 450 marks in the subject as under:-

Paper I General Studies 150 marks

Paper II One subject to be 300 marks

selected from the list

of optional subject

given below.

Total: 450 marks"

Those who are qualified in the preliminary competitive

examination are entitled to apply for admission to the main competitive

examination.

All the petitioners applied for preliminary examination in

response to the aforementioned advertisement. Petitioners in these petitions

belong to Scheduled Castes, Backward Classes and Freedom Fighter

categories.

The fact remains that all the petitioners belong to one or the

other reserved category. They were issued admit card and roll numbers for

participation in the preliminary examination which was held on 19.12.2010.

The Commission issued list of the successful candidates of preliminary

examination. The list comprises of shortlisted candidates for the main

examination category wise like general, Scheduled Castes, Backward Castes

etc. Even though the list is roll number wise, however, every list contains CWP No. 1023 of 2011 -7-

category wise cut off marks secured by the candidates in the preliminary

examination. The details of category wise cut off marks for each category

are in the following manner:-

" GENERAL CATEGORY (71)

TOTAL CANDIDATES=1106 CUT OFF MARKS=290.017

ESM, PUNJAB CATEGORY (72)

TOTAL CANDIDATES=119 CUT OFF MARKS=68.456

LDESM, PUNJAB CATEGORY (73)

TOTAL CANDIDATES=48 CUT OFF MARKS=203.578

FREEDOM FIGHTERS, PUNJAB CATEGORY (74)

TOTAL CANDIDATES=14 CUT OFF MARKS=305.050

SPORTS PERSONS, PUNJAB CATEGORY (75)

TOTAL CANDIDATES=26 CUT OFF MARKS=226.510

PHYSICALLY HANDICAPPED, PUNJAB CATEGORY

(76).

TOTAL CANDIDATES=66 CUT OFF MARKS=223.063

SC OTHERS, PUNJAB CATEGORY (77)

TOTAL CANDIDATES=249 CUT OFF MARKS=276.023

SC ESM, PUNJAB CATEGORY (78)

TOTAL CANDIDATES=12 CUTT OFF MARKS=68.456

SC OTHERS(SPORTSPERSONS) PUNJAB CATEGORY

(80)

TOTAL CANDIDATES=4 CUTT OFF MARKS=211.155

B/M SIKH, PUNJAB CATEGORY (81)

TOTAL CANDIDATES=236 CUT OFF MARKS=231.117

B/M SIKH, PUNJAB CATEGORY (82)

TOTAL CANDIDATES=1 CUT OFF MARKS=88.591

B/M SIKH SPORTS PERSON, PUNJAB CATEGORY (84)

TOTAL CANDIDATES=2 CUT OFF MARKS=230.923

BC, PUNJAB CATEGORY (85)

TOTAL CANDIDATES=317 CUT OFF MARKS=225.017

BC ESM, PUNJAB CATEGORY (86)

TOTAL CANDIDATES=12 CUT OFF MARKS=68.456"

CWP No. 1023 of 2011 -8-

Petitioners who belong to different reserved categories have not

been shortlisted for the main examination having secured marks less than

the cut off marks in their respective categories, however, some of the

petitioners have secured marks more than the last qualified candidates in the

general category. It is also pertinent to note that in most of the reserved

categories, the shortlisted candidates have secured more marks than the last

shortlisted in the general category. In view of this factual background, the

petitioners have approached this Court seeking a direction for shifting the

reserved category candidates who have secured more marks than the

shortlisted candidates in general category to general category on the basis of

their higher merit and resultant slots in reserved list be filled from reserved

category candidates next in the merit on the basis of preliminary test. The

prayer made in some of the writ petitions is also to redraw the merit list in

accordance with the mandate of judgements in case of Indra Sawhney Vs.

Union of India, reported as 1992 Suppl. (3) SCC 217 and R.K. Sabharwal

and others Vs. State of Punjab reported as 1995(2) RSJ 895.

The stand of the Commission and the State-respondents is

identical. It is stated that as per the Punjab State Civil Service (Appointment

by Combined Competitive Examination) Rules, 2009 read with Punjab Civil

Service (Executive Branch) Rules, 1976, (Rule 13-A(4) the total number of

candidates to be admitted to the main competitive examination cannot

exceed 13 times the total number of vacancies determined by the Govt.

under sub rule 1. Rule 13-A (4) relied upon by the respondents reads as

under:-

CWP No. 1023 of 2011 -9- " The total number of candidates to be admitted to the main competitive examination shall not exceed thirteen times the total number of vacancies determined by the govt. under sub-rule (1)."

It is, accordingly, contended that there is no provision, under

the rules or instructions, which inter alia requires a reserved category

candidate who secures more marks than the general category candidate, is to

be treated as general category candidate for purposes of shortlisting as

prelude to main competitive examination. Respondents have further relied

upon the instructions dated 30.12.1996, which prohibits conversion from

one category to another. It is, accordingly, stated that the candidates are

required to be shortlisted up to thirteen (13) times the number of vacancies

in their own category and no candidate can be shifted from one category to

another including from reserved to general category for purposes of

shortlisting for main competitive examination. It is also the stand of the

State that reservation is provided under the backward classes (Reservation

in Services) Act, 2006 and there is no provision in the said Act, whereunder

a reserved category candidate who secures more marks than the general

category can be treated as general category candidate. It is also the stand of

the respondents that the candidates who applied under a particular category

are required to appear in the main examination and viva voce test in the

same category in which they had applied.

The State of Punjab has enacted the Punjab Scheduled Castes

and Backward Classes (Reservation in services) Act, 2006. This Act is

applicable to all appointments by a direct recruitment, by promotion or by

transfer. Section 4 provides the percentage of reservation for each category CWP No. 1023 of 2011 -10-

and reads as under:-

"4. Percentage of Reservation-(1) While making appointments in service by any of the methods, provided under any Service Rules, reservation shall be made for the members of the Scheduled Castes and Backward Classes in the services under all the establishments. (2) The percentage of reservation for filling up the vacancies by direct recruitment or by transfer in Group 'A', Group 'B', Group 'C' and Group 'D' services, shall be twenty-five per cent for Scheduled Castes and twelve per cent for Backward Classes. (3) The percentage of reservation for filling up the vacancies by promotion by Scheduled Castes in Group 'A' and Group 'B' services shall be fourteen per cent.

(4) The percentage of reservation for filing up the vacancies by promotion by Scheduled Castes in Group 'C' and Group 'D' services shall be twenty per cent.

(5) Fifty per cent of the vacancies of the quota reserved for Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhbi Sikhs, if available, as a first preference from amongst the Scheduled Castes.

(6) Reservation shall be implemented by reserving vacancies by means of a running roster, as may be prescribed till the percentage of reservation, as specified in sub-sections (2), (3) and (4) are completed. (7) Reservation shall be applicable to vacancies to be filled on ad hoc basis, short term vacancies, work charged establishment, daily wages staff and the staff engaged on contract basis. (8) Reservation shall also be applicable to proforma promotion and appointment by transfer."

Section 7 deals with the de-reservation of the reserved

vacancies and reads as under:-

" De-reservation of reserved vacancy (1) There shall be no de- reservation of any reserved vacancy by any appointing authority in any establishment, which is to be filled up by direct recruitment or by promotion. In case, a qualified or eligible Scheduled Castes or Backward Classes candidate, as the case may be, is not available to fill up such CWP No. 1023 of 2011 -11- vacancy, in that situation, such vacancy shall remain unfilled. (2) Notwithstanding anything contained in sub-section (1), if, in the public interest, it is deemed necessary to fill up any vacancy referred to in that sub-section, the appointing authority shall refer the vacancy to the Department of Welfare of Scheduled Castes and Backward Classes for de-reservation. Upon such reference, the Department of Welfare of Scheduled Castes and Backward Classes may, if it is satisfied that it is necessary or expedient so to do, by order in writing, de-reserve the vacancy, subject to the condition that the vacancy so de-reserved, shall be carried forward against a subsequent unreserved vacancy."

Contention on behalf of the petitioners is that the reservation

policy of the State is to be applied in accordance with the provisions of the

Reservation Act, Govt. Instructions issued from time to time and the

judgement of the Hon'ble Apex Court. In case reported as 1992 Suppl. (3)

SCC 217, titled as Indra Sawhney Vs. Union of India, the Hon'ble

Supreme Court observed as under:-

"811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition filed on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates."

In a subsequent Constitution Bench judgement in case of R.K.

Sabharwal Vs. State of Punjab, 1995 (2) SCT 646. The Hon'ble Supreme

Court has further observed as under:-

" When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserve posts. On the other hand the reserve category candidates can compete CWP No. 1023 of 2011 -12- for the non-reserve posts and in the event of their appointment to the said 356 posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the backward class/classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular backward class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. The fact that considerable number of members of a backward class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/Rules providing certain percentage of reservations for the backward classes are operative the same have to be followed. Despit any number of appointment/promotees belonging to the backward classes against the general category posts the given percentage has to be provided in addition."

Hon'ble Supreme Court again considered the question of

application of the reservation in case of Ritesh R. Sah Vs. Dr. Y.L. Yamul

reported as 1996 (2) SCC 253 and followed the above view, however, this

was a case of admission to professional course. In case of Ravinder Kumar CWP No. 1023 of 2011 -13-

Vs. State of Haryana and others reported as 2010 (5) SCC 136 the

Hon'ble Supreme Court applying the principle of merit of the reserved

category candidates observed as under:-

"11. It was argued by Mr. Patwalia and in our opinion rightly so that if an ex-serviceman candidate scored high enough marks entitling him to be selected in the Ex-servicemen (General) category, such candidates ought to be selected in the said category instead of selecting them in the Ex-servicemen BC(A) or BC(B) categories."

In case of Jitender Kumar Singh and another Vs. State of

U.P. And others reported as 2010 (3) SCC 119 Hon'ble Supreme Court

was again examining the controversy whether reserved category candidate

can be selected against the general category post on obtaining more marks

than the last candidate in the general category. In para 33 of the judgement,

Hon'ble Supreme Court noticed the issue involved which reads as under:-

" 33. The core issue in the writ petitions was with regard to filling up the General Category posts by candidates belonging to the reserved category candidates on their obtaining more marks than the last candidate in the General Category."

This question has been answered as under:-

"From the above it becomes quite apparent that the relaxation in age limit is merely to enable with the general category candidate, all other things being equal. The State has not treated the relaxation in age and fee as relaxation in the standard for selection, based on the merit of the candidate in the selection test i.e. Main Written Test followed by Interview. Therefore, such relaxation cannot deprive a reserved category candidate of the right to be considered as a general category candidate on the basis of merit in the competitive examination."

Based upon these judgements, learned counsel appearing for

the petitioners have submitted that reserved category candidates cannot be

put to disadvantageous position. Even by securing more marks than the CWP No. 1023 of 2011 -14-

general category candidates, they have been retained in reserved category

and thus deprived the reserved category candidates next in the merit of their

right of participation in the main competitive examination. It is vehemently

argued that all those reserved category candidates who have qualified on the

basis of their own merit are to be treated as general category candidates for

purposes of shortlisting, allowing the benefit of reservation to other

reserved category candidates, who are next in the merit in the relevant

category. It is contended that the benefit of reservation is to be granted to

the deprived classes of the society who by virtue of their deprivation are

unable to play a level game with others, however, by not treating the

meritorious reserved category candidates amongst the general category

candidates, the benefit of reservation does not percolate to the deserving

reserved category candidates.

Apart from above petitioners have also relied upon Govt.

Instructions dated 10.7.1995, wherein following provisions have been

made:-

" (i) While calculating the percentage of reservation as prescribed in Govt. Instructions from time to time, the officials/officers appointed/promoted on seniority-cum-merit basis belonging to reserve categories will be excluded from the number of reserve categories working in the particular cadre."

These Govt. Instructions have also been followed by another

Govt. Instructions dated 30.12.1996, whereby quantum of reservation for

Backward Classes in the State Services has been fixed. This notification

further provides that where the regular number of Scheduled Castes Ex-

serviceman candidates are not available the earmarked vacancies for this

category would first go to Scheduled Castes and in case no Scheduled CWP No. 1023 of 2011 -15-

Castes candidates are available, these will be given to the Ex-serviceman

(general) category candidates. It is, accordingly, argued that enough number

of Scheduled Castes Ex-serviceman being not available, the vacancies

would go to Scheduled castes candidates at the first instance and if,

Scheduled Castes candidates are also not available then these vacancies will

go to Ex-serviceman (general category) candidates.

Mr.H.C. Arora, one of the counsel appearing for the petitioners

has further argued that the very object of shifting the meritorious reserved

category candidates to the general category pool is not to allow any benefit

to any individual but to grant benefit of reservation to a class of the society,

who has suffered and is to be provided equal opportunity with the non-

reserved categories.

The State on its part has seriously and strenuously opposed the

contention of the petitioners. Mr. Puneet Gupta, learned Addl. A.G. and

Ms. Anu Pal, A.A.G., Punjab while referring to the Punjab Civil Service

(Executive Branch) (Class-I) Rules, 1976 have submitted that preliminary

examination has been conducted strictly in accordance with the mandate of

the rules. The rules envisage application of the reservation policy at the

stage of preliminary examination to the limited extent. According to Mr.

Gupta every reserved category candidate has been sufficiently provided

opportunity to compete for main examination and 13 times candidates from

each reserved category have been shortlisted and declared qualified for

appearing in the main examination. It is contended that the preliminary

examination per se is not a process of selection but only a prelude to

initiation of selection process. The shortlisting through the mode of

preliminary examination is only a qualifying examination and the strict rules CWP No. 1023 of 2011 -16-

of reservation have no application at the stage of qualifying examination.

The further contention of the respondents is that while providing benefit to

the reserved categories the concept of administrative efficiency cannot be

sacrificed. A balance is to be maintained between the reservation and the

administrative efficiency which is the hallmark of every service particularly

the administrative services of a State which is considered to be a premier

service. Referring to the observations made in Indra Sawhney, R.K.

Sabharwal and M. Nagraj's cases, it is argued that while maintaining the

reservation, administrative efficiency has also to be preserved.

It is further contended that a balance has to be struck between

the claims of the reserved categories and the maintenance of efficiency of

administration envisaged under Article 335 of the Constitution of India.

Reservation to provide equal opportunity to the deprived,

underprivileged and disadvantageous classes emanates from Article 16(4) of

the Constitution of India, whereas Article 335 requires the consideration of

the claims of Scheduled Castes and Scheduled Tribes consistently with the

maintenance of efficiency of administration. The constitutional scheme

itself requires providing opportunity to the underprivileged classes of the

society to enable them to compete with others who are considered to be

better placed with opportunity in the society and at the same time needs

administrative efficiency. It is in this context that the principle of

reservation what is called in legal parlance as the "protective

discrimination" is to be viewed. The purpose and scope of Article 16 has

been considered by the Hon'ble Apex Court in a number of judgements right

from the case of Railway G.M. Vs. Rangachari reported as (1962) 2 SCR

586 to M.Nagaraj Vs. Union of India and others reported as (2006) 8 CWP No. 1023 of 2011 -17-

SCC 212 and even in some subsequent judgements by Hon'ble Supreme

Court in depth. It has been held that Article 16(4) is an enabling provision.

It is in this context that in Indra Sawhney's case (supra) Hon'ble Supreme

Court has observed as under:-

"156. A programme of reservation may sacrifice merit but does not in any way sacrifice competence because the beneficiaries under Article 16(4) have to possess the requisite basic qualifications and eligibility and have to compete among themselves though not with the mainstream candidates."

Maintenance of efficiency in public employment is as relevant

and significant as providing reservation to the underprivileged classes as

has been noticed by the Hon'ble Supreme Court in Indra Sawhney's case

(supra) which is reproduced hereunder:-

"505. It is necessary in this connection, to point out that not only giving proportional representation to the backward classes and S.Cs/S.Ts. However, it cannot be disputed that whether it is the appointments of S.Cs/S.Ts or other backward classes, both are to be made consistently with the maintenance of the efficiency in administration. Since the reservations contemplated under both the articles include also the giving of concessions in marks, exemptions etc. it is legitimate to presume that the Constitution-framers being aware of the level of backwarness, did envisage that the inadequacy in the representation of the backward classes cannot be made up in one generation consistently with the maintenance of efficiency in the administration. In fact, as pointed out earlier, if the backward classes can provide candidates for filling up the posts in all fields and at all levels of administration in one generation, they would cease to be backward classes. What was in the mind of the Constitution-framers was the removal of the inadequacy in representation over a period of time, on each occasion balancing the interests of the backward classes and the forward classes so as not to affect the provisions of equality enshrined in Articles 14 and 16(1) as also the interests of the society as a whole. As pointed out earlier, Dr. Ambedkar was not only not in favour of CWP No. 1023 of 2011 -18- proportional representation but was on the contrary of the firm view that the reservations under Article 16(4) should be confined to the minority of the posts/appointments. In fact, as the debate in the Constitutent Assembly shows nobody even suggested that the reservations under Article 16(4) should be in proportion to the population of the backward classes."

A similar view is expressed by the Hon'ble Supreme Court in

M.Nagaraj's case (supra) in para 44, which is as under:-

" 44. The above three concepts are independent variable concepts. The application of these concepts in public employment depends upon quantifiable data in each case. Equality in law is different from equality in fact. When we construe Article 16(4), it is equality in fact which plays the dominant role. Backward Classes seek justice. General Class in public employment seeks equity. The difficulty comes in when the third variable comes in namely efficiency in service. In the issue of reservation, we are being asked to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system. Equity and justice in the above context are hard concepts. However, if you add efficiency to equity and justice, the problem arises in the context of the reservation. This problem has to be examined, therefore, on the facts of each case. Therefore, Article 16(4) has to be construed in the light of Article 335 of the Constitution. Inadequacy in representation and backwardness of the Scheduled Castes and Scheduled Tribes are circumstances which enable the State Govt. to act under Article 16(4) of the Constitution. However, as held by this Court the limitations on the discretion of the Govt. in the matter of reservation under Article 16(4) as well as Article 16(4-A) come in the form of Article 335 of the Constitution."

It is, however, to be seen that the State has to principally and

primarily decide the extent of reservation and the manner in which

reservation is to be provided which inter alia includes the stage, where the

benefit of reservation is to be extended. Article 16(1) speaks of equal

opportunity in the matter of public employment, whereas Article 335 refers

to claims of the members of the reserved categories to the service and posts. CWP No. 1023 of 2011 -19-

Hence, the whole concept of these provisions is to consider the claim of

reserved categories for providing employment and appointment to posts.

Thus, the moot question which needs to be examined in the present case is

whether the principle enunciated in Indra Sawhney and R.K. Sabharwal's

cases, the very concept of reservation applies at all stages of a process

leading to the recruitment or its application is to be confined at the time of

filling up of the vacancies by such recruitment. Looking to the scheme of

the rules namely Punjab Civil Service (Executive Branch) (Class-I) Rules,

1976, it appears that the rules envisage two stages. (1) Preliminary

examination which is in the nature of a qualifying examination, (2) the main

examination followed by viva voce which is a competitive examination

leading to assessment of merit for recruitment. Should the qualifying

examination envisaged under the rules is to be construed as a part of the

recruitment process or has to be segregated from the main process of

recruitment. It is settled law that the principles of reservation in whatever

form particularly for purposes of public employment has direct relation with

the appointment to a post. Any qualifying examination preceding the

process of selection even if, it is necessary to reach the process of selection

should not be subjected to application of strict rules of reservation. The

preliminary examination is in the realm of qualifying examination. It is like

a student has to successfully qualify 10+2 examination with the required

percentage to enable him to seek admission in any professional course

which is subject to the reservation policy under Article 15 or a qualifying

test like National Eligibility Test (NET) or State Eligibility Test (SET)

conducted by the C.S.I.R or the State Agency as the case may be or a

teacher's eligibility test proposed by the N.C.T.E, all these are the qualifying CWP No. 1023 of 2011 -20-

examinations. Merit in the qualifying examination is not taken into

consideration for determining the merit of a candidate at the time of

selection/recruitment. Thus, from the scheme of rules, it appears that though

preliminary examination is a step towards the process of recruitment but is

not an integral part of the process of selection/recruitment. The principle

that meritorious reserved category candidates should be selected against the

general vacancies cannot be forcefully applied at the state of qualifying

examination. The very object and purport of qualifying examination is to

enable the candidates to climb and reach the zone of consideration.

Thus, in my considered opinion the real competition or the

process of recruitment commence when all the candidates fulfill all the

eligibility conditions and qualify for the real competition i.e the main

examination.

The Hon'ble Supreme Court in case of Jitender Kumar (supra)

considered this question in the context of applying the reservation and

observed as under:-

"At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfill the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participated in the written examination, it is immaterial as to which category the candidate belongs. All the candidates to be declared eligible had participated in the Preliminary Test as also in the Physical Test. It is only thereafter that successful candidates have been permitted to participate in the open competition."

CWP No. 1023 of 2011 -21-

A similar question came up for consideration before the

Hon'ble Apex Court in case of Andhra Pradesh Public Service

Commission Vs. Baloji Badhavath and others reported as 2009(5) SCC

1. The State of Andhra Pradesh issued G.O.M.S No.517 dated 31.12.1997

making the provision for shortlisting of the candidates who applied for

Group-I services in the State of Andhra Pradesh on the basis of preliminary

examination (Screening Test) in the ratio of 1:50 to the total number of

vacancies irrespective of community. The preliminary test comprised of

general English as a qualifying one. This Govt. memo further contained a

stipulation regarding S.C/S.T candidates in the following manner:-

"5. In the event of the SC and ST candidates not coming up for selection with the existing minimum prescribed for the selection in the competitive examination conducted by the Commission, their selection shall be considered on the basis of rank with reference to their performance in the written and oral competitive examination."

A preliminary examination was held and it was fond that not so

many reserved category candidates could be shortlisted applying the ratio of

1:50 and the High Court in a writ petition set aside the Govt. memo as also

the advertisement notification declaring the same to be ultra vires to the

Articles 14 and 16 of the Constitution. Considering the purpose of the

preliminary examination the Hon'ble Supreme Court observed as under:-

"29. Indisputably, the preliminary examination is not a part of the main examination. The merit of the candidate is not judged thereby. Only an eligibility criterion is fixed. The papers for holding the examination comprise of general studies and mental ability. Such a test must be held to be necessary for the purpose of judging the basic eligibility of the candidates to hold the tests. How and in what manner the State as also the Commission would comply with the constitutional requirement of Article 335 of the Constitution of India should ordinarily not be allowed to CWP No. 1023 of 2011 -22- be questioned.

30. The proviso appended to Article 335 of the Constitution, to which our attention has been drawn by Mr. Rao, cannot be said to have any application whatsoever in this case. Lowering of marks for the candidates belonging to the reserved candidates(sic categories) is not a constitutional mandate at the threshold. It is permissible only for the purpose of promotion. Those who possess the basic eligibility would be entitled to appear at the main examination. While doing so, in regard to General English whereas the minimum qualifying marks are40% for O.Cs, it would be 35% for B.Cs and 30% for S.C/S.Ts and physically handicapped persons. However, those marks were not to be counted for ranking."

In the final analysis Hon'ble Supreme Court set aside the

judgement of the High Court and upheld the Govt. memo.

In another case reported as AIR 2009 SC 2438, titled as Union

of India and Ors. Vs. Dalbir Singh and Anr. Govt. of India initiated

process for selection to 20 posts of Mazdoor both in general and reserved

categories. Two separate board proceedings were held for general category

candidates and reserved category candidates. Some of the candidates

belonging to the reserved categories secured more marks than the general

category candidates but they were selected only in reserved category. Some

of the reserved category candidates belonging to O.B.C who had secured

more marks than the general category candidates approached the Central

Administrative Tribunal, Chandigarh seeking a direction for shifting the

reserved category candidates to general category for selection. The

Tribunal allowed the application and issued directions for selection of

reserved category candidates who had secured more marks than general

category against general category posts. The High Court of Punjab &

Haryana, Chandigarh affirmed the order of the Tribunal, however, the

Hon'ble Supreme Court set aside the order of the High Court. CWP No. 1023 of 2011 -23-

Having regard to the statutory provisions and ratio of various

judgements noticed herein above, following principles emerge:-

(i) Reserved category candidates who secured higher merit

in the process of selection for appointment are to be considered for

appointment against general category vacancies notwithstanding the fact

that they have applied under the reserved categories and the resultant slot

under the reserved category will be occupied by the reserved category

candidates next in the order of merit.

(ii) Above principle is, however, applicable at the time of

making appointment on completion of the selection process.

(iii) Principle at point (i) will have not application at the stage

of qualifying examination, shortlisting or screening test.

In view of the above conclusion, these writ petitions are liable

to be dismissed. I order accordingly.

A copy of this judgement be placed on record of each

connected file.

(PERMOD KOHLI)

JUDGE

3.6.2011.

lucky

Whether to be reported? Yes