Gurmeet Pal Singh vs State Of Punjab

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4853 OF 2018 [Arising out of SLP(C) No.33680/2013]

GURMEET PAL SINGH ….APPELLANT

Versus

STATE OF PUNJAB & ANR. ….RESPONDENTS

WITH

Civil Appeal No._4856 of 2018 [Arising out of SLP(C) No.3826/2014]

Civil Appeal No.4857 of 2018 [Arising out of SLP(C) No.8431/2014]

Civil Appeal No.4858 of 2018 [Arising out of SLP(C) No.31833/2014]

Civil Appeal No.4854 of 2018 [Arising out of SLP(C) No.36660/2013]

Civil Appeal No.4855 of 2018 [Arising out of SLP(C) No.2997/2014]

JUDGMENT

SANJAY KISHAN KAUL, J.

1. In exercise of the powers conferred by the proviso to Article 309 Signature Not Verified Digitally signed by NEELAM GULATI Date: 2018.05.15 13:01:23 IST of the Constitution of India, the Punjab Superior Judicial Service Reason: 1 Rules, 2007 (hereinafter referred to as the ‘said Rules’) were 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 and viva-voce conducted by the High Court. Sub-clause

(c) of Sub-rule (3) of Rule 7 dealt with the latter direct appointment for

which 25 per cent of the posts were reserved. The appeals in question

relate to the process of the direct recruitment under these Rules at the

first instance, carried out in pursuance of the advertisement issued on

02.02.2008.

2. 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

Caste (‘SC’) category, two (2) from Backward Class category, one (1)

from Ex-Serviceman (General) category, one (1) from B.C. (Ex-

Serviceman) category and one (1) from Physically Challenged

2 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 to variation.’ Note 4 to the

advertisement qua the Physically Challenged category also stated that

“if no candidate is found suitable or medically fit under this category,

the post shall be reverted to the General category candidate.”

3. 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, viva-voce 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.

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4. 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 on 12.03.2008, and, thus, the submission of the

appellants is that one more seat for General category became available

post issuance of the advertisement and since the number of posts were

subject to variation, this vacancy should be made available to the

General category. The second is arising from a defect in the

advertisement inasmuch as no reservation for ex-serviceman was

envisaged, as Rule 3 of the Punjab Recruitment of Ex-Servicemen

Rules, 1982 (hereinafter referred to as the ‘Ex-Servicemen Rules’)

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 Ex-Serviceman (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

4 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

5 examinations. The details of these are disclosed as per Annexure A to

the additional affidavit filed on behalf of respondent No.2/the High

Court, which is reproduced hereinunder:

Sr. Candidate’s Father/Husband’s Notification Rank Notification Notification Notification Notification Notification No Name Name dated as per dated dated dated dated dated . 2.2.2008 Merit 21.10.2009 8.4.2011 2.1.2012 29.4.2013 23.3.2015 List

1. Gurmeet Santokh Singh Appeared 11 - Appeared in Appeared in Appeared -

Pal Singh in the Exam the Exam the Exam in the Exam 2. Kadambini Mukand Lal Appeared 13 - Appeared in Appeared in Appeared Appeared Arora in the Exam the Exam the Exam in the in the Exam Exam 3. Anuradha Bhavnesh Shukla Appeared 12 - - - - - in the Exam 4. Preeti Narinder Appeared 15 - - - - - Bhargav Bharbav in the Exam 5. Parmod Satyapal Sharma Appeared 16 - Appeared in - Appeared - Kumar in the Exam the Exam in the Exam

6. The appellants, however, contend that if they have been

wrongfully excluded, whether they appeared in a subsequent

examination or not, or whether they were successful or not in the

subsequent examination, would not be material. It is also the case of

the appellants that though a decade has passed since the examination

was held, the delays in the adjudication process should not deprive

them of being appointed even if there have been subsequent

recruitments, and if that aspect weighs with the Court, the relief can be

suitably modified qua the issue of seniority.

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A. Effect of elevation of a Judge from the category of direct advocate recruits to the High Court:

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.

B. The provision wrongfully made in the advertisement reserving two seats for Ex-Servicemen:

8. The advertisement dated 02.02.2008 did make a provision for

two seats for Ex-Servicemen – one in General category and one from

Backward Class category. However, such a reservation had no force of

law in view of Rule 3 of the Ex-Servicemen Rules, carving out an

7 exception in respect of the Punjab Vidhan Sabha Secretariat Service

and the Punjab Superior Judicial Service. The High Court having

noticed this fact, abandoned the process of recruitment for this

category in terms of the minutes of meeting dated 25.07.2008. It did

initially resolve that the vacancy advertised for Ex-Servicemen

(General) would also go to the General category but ultimately that is

not what was done. The said seat was, however, made available for

absorption of the Judges from the Fast Track court. In fact, there were

two Judges recruited from the Fast Track court – one against this post

and the other against the vacancy, which arose on account of the

elevation of Justice Sabina through a different exercise, which will be

discussed later on.

C. The recruitment of two Judges from Fast Track Courts:

9. The Fast Track courts owe their origin to the allocation of funds

under the 11th Finance Commission to deal with long pending cases,

particularly Sessions cases. A time bound utilization within a period of

five years was envisaged and, thus, various State Governments were

required to take necessary steps to establish such courts. We may

notice here that obviously the regular cadre strength of Judges has been

8 awfully inadequate to meet the pendency and inflow of cases, one

methodology could be to increase the cadre strength itself. There have

been periodic reviews for this purpose in the last few years. However,

not having done that at the relevant stage, a short cut method was

envisaged to, at least, temporarily create the Fast Track courts for

certain category of cases. However, since the fund from the Central

Government ceased after five years, the question arose as to what was

to happen to these Fast Track courts especially keeping in mind that a

number of the presiding officers had been appointed directly from the

Bar. The challenge laid to the constitutionality of this scheme for Fast

Track courts was repelled in Brij Mohan Lal v. Union of India &

Ors.1. In para 10 of the judgment, directions were issued to deal with

the initial teething problems of the Scheme. Direction No.4, after the

earlier directions recorded that preference will be given to appointment

on ad hoc promotions, followed by retired Judges, stipulated as under:

“4. The third preference shall be given to members of the Bar for direct appointment in these Courts. They should be preferably in the age group of 35-45 years, so that they could aspire to continue against the regular posts if the Fast Track Courts cease to function. The question of their continuance in service shall be reviewed periodically by the High Court based on their

1(2002) 5 SCC 1

9 performance. They may be absorbed in regular vacancies, if subsequent recruitment takes place and their performance in the Fast Track Courts is found satisfactory. For the initial selection, the High Court shall adopt such methods of selection as are normally followed for selection of members of the Bar as direct recruits to the Superior/Higher Judicial Services.”

10. The stand of the High Court is that it is in furtherance of the

aforesaid judgment that a provision was made for absorption of the

Judges appointed to the Fast Track court on a permanent basis.

11. The appointment was made vide order dated 20.06.2008 and two

such Judges in the Fast Track court against the two vacancies, i.e., one

of Ex-Servicemen (General) category and the second which occurred

on elevation of Justice Sabina from the subordinate judiciary to the

High Court. Such selection was preceded by a Selection Committee

constituted by the High Court in order to assess the suitability for

absorption of the Judges. The Judges were marked on a benchmark of

100 marks, out of which 50 marks were from written test, 25 marks for

viva-voce and 25 marks for performance as a Judge of the Fast Track

court. These two obtained the highest marks qua the vacancies for

Punjab as recorded in the minutes of the meeting dated 18.03.2008.

10

12. The aforesaid shows that a completely different process was

followed for 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 India2).

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

2(2014) 14 SCC 745 – para 16

11 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

12 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

Shukla4. 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

3(2017) 4 SCC 357 4(2002) 6 SCC 127 5(2008) 17 SCC 703

13 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

6(2016) 6 SCC 532

14 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.

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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.

22. The appeals are accordingly dismissed leaving the parties to bear

their own costs.

..….….…………………….J. [J. Chelameswar]

...……………………………J. [Sanjay Kishan Kaul] New Delhi;

May 15, 2018.

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