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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.5035-5036   OF 2016 (Arising out of SLP(C) Nos.23748-23749 of 2012)

KULWINDER PAL SINGH AND ANR.                            ..Appellants  

Versus

STATE OF PUNJAB AND ORS.                               …Respondents  

J U D G M E N T

R. BANUMATHI, J  .   

Leave granted.

2. These  appeals  are  preferred  against  the  common  

judgment dated 13.02.2012 whereby the High Court of Punjab and  

Haryana  dismissed  the  writ  petitions  C.W.P.  No.20135  of  2008,  

C.W.P. No.20189 of 2008 and C.W.P. No.21746 of 2008, holding  

that the appellants cannot claim any legal right in respect of the  

posts remained unfilled as the select list stood exhausted with the  

joining of the candidates to the extent of posts advertised.   

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3. Brief  facts which led to filing of  these appeals are as  

follows:  Punjab Public  Service  Commission issued advertisement  

for filling up 52 posts of  Punjab Civil  Services (Judicial  Branch)  

vide advertisement dated 07.03.2007.  Out of 52 posts, 27 posts  

were for General  Category;  25 posts for reserved category which  

included  03  posts  for  Ex-servicemen;  02  posts  for  Physically  

Handicapped;  10  posts  for  Scheduled  Castes;  03  posts  for  

Scheduled Caste Ex-servicemen; 05 posts for Backward Classes; 01  

post  for  Backward  Class  Ex-servicemen and  01  post  for  Sports  

Person.  Preliminary  examination  was  conducted  on  27.05.2007.  

The main examination was conducted from 20th to 22nd July, 2007.  

The viva voce was conducted from 28th to 30th November, 2007 and  

final  result  was  declared  on  01.12.2007.  27  candidates  from  

general  category,  10  candidates  from  scheduled  castes  and  05  

candidates  from backward classes  were  declared  successful  and  

have  joined  in  terms  of  letters  of  appointment  issued  to  them.  

Eight posts were de-reserved in respect of the remaining unfilled  

vacant  posts.  As  against  the  said  de-reserved  posts,  seven  

candidates from the general category i.e. candidates upto Sl. No.34  

and  01  candidate  from  backward  classes  were  offered  

appointments.  However,  three  candidates  belonging  to  general  

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category  namely  Sumit  Garg,  Vijayant  Sehgal  and  Yogesh  

Chaudhary placed at Sl. No.1, 5 and 32 respectively did not join  

the  service.  Resultantly,  thirty  one  general  category  candidates  

accepted the appointment and joined service.  

4. The  appellants,  who  belong  to  general  category  have  

appeared in preliminary examination and subsequently in the main  

examination including  viva voce figured in the final merit list as  

they stood at Sl. Nos. 37 and 36 and Parminder Singh Grewal at Sl.  

No. 35.  Since three candidates did not join service, the appellants  

submitted the representation on 02.04.2008 to the High Court for  

issuance of appointment orders to them. The representation of the  

appellants  was  considered  in  the  sixteenth  meeting  of  the  

Administrative Committee held on 08.12.2010 and it was resolved  

to recommend the names of the appellants subject to approval of  

the Full Court. Again the matter was considered in the eighteenth  

meeting  of  the  Administrative  Committee  held  on  06.07.2011  

wherein  it  was  decided  that  the  appellants  cannot  be  offered  

appointments due to lack of vacancies.  In Punjab, there was an  

ongoing litigation regarding selection of the judicial officers (Junior  

Division) in 1998, 1999, 2000 and 2001 (known as Sidhu scam).  In  

the said litigation in C.W.P. No.1626 of 2003, as per the order of  

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the Supreme Court, twenty two candidates were to be appointed. At  

that  time  in  the  Punjab  Judicial  Service,  only  six  posts  were  

available and therefore sixteen temporary posts were sanctioned by  

the Punjab Government on 22.07.2008 with a specific  condition  

that those temporary posts shall be adjusted against the vacancies  

created due to future retirements/promotions/vacancies etc. and  

these sixteen posts shall be abolished one by one as and when a  

vacancy  is  available.   In  the  meeting  held  on  06.07.2011,  the  

Administrative Committee took note of the order of this Court and  

observed  that  three  resultant  vacancies  of  the  year  2007-2008  

stood consumed with the joining of  seventeen candidates  of  the  

litigation pertaining to Sidhu scam case.

5. Feeling aggrieved, appellants filed writ petitions before  

the High Court contending that three vacancies which remained  

unfilled due to non-joining of three candidates should have been  

offered to them as they were next in the order of merit.  The High  

Court dismissed the writ petitions holding that the appellants have  

no right to be appointed against the vacancies falling vacant due to  

non-joining of three candidates of general category. It was further  

held  that  as  against  27  vacancies  available  for  general  category  

candidates, 31 general category candidates have already joined and  

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are actually working i.e. candidates much more than the vacancies  

advertised have been permitted to join and thus the select list of  

2007-2008 stands exhausted.  Aggrieved thereof, appellants have  

preferred these appeals. Be it noted that Parminder Singh Grewal  

whose  writ  petition  also  came  to  be  dismissed  by  the  common  

judgment has not preferred any appeal.

6. Learned counsel for the appellants Ms. Kamini Jaiswal  

submitted that the appellants had a right to be appointed in lieu of  

three  vacancies  falling  vacant  on  account  of  non-joining  of  the  

candidates. To substantiate the contention, learned counsel relied  

on Gujarat State Deputy Executive Engineers’ Association v. State of  

Gujarat & Ors., (1994) 2 SLR 710 (SC): (1994) Supp. 2 SCC 591. It  

was contended that the High Court erred by considering the issue  

of  de-reservation  of  post  even  though  the  same  was  not  raised  

before it.  It was further urged that once the High Court concluded  

its  view  upon  de-reservation,  High  Court  should  have  directed  

cancellation of other candidates on their said de-reserved post as a  

necessary corollary of holding de-reservation improper.   

7. Per  contra,  learned  counsel  for  the  respondents  

contended that because the names of appellants were in the select  

list,  the  appellants  have  no  indefeasible  right  of  appointment.  

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Drawing  our  attention  to  Annexure  P-10,  learned  counsel  

submitted that the said three resultant vacancies of the year 2007-

2008  were  consumed  with  the  joining  of  seventeen  candidates  

relating to “Sidhu scam case” and the appellants have no right to  

claim appointment.   

8. We have carefully considered the rival contentions and  

perused the impugned judgment and material on record.  

9. As against 27 posts of general category advertised, all  

27 candidates joined.  Out of de-reserved 08 posts, 01 post was  

filled by a backward class candidate and the remaining 07 posts by  

general  category  candidates.  Admittedly,  Sumit  Garg,  Vijayant  

Sehgal and Yogesh Chaudhary placed at Sl. Nos. 1, 5 and 32 of the  

merit  list  to  whom  appointment  letters  were  issued,  have  not  

joined.  Resultantly,  as  against  27  posts  advertised  for  general  

category,  31  general  category  candidates  have  joined  and  are  

working.   

10. There is no denying that the appellants were placed in  

the select list at Sl. Nos. 35, 36 and 37.   In the sixteenth meeting  

of Administrative Committee held on 08.12.2010, considering the  

representation  of  the  appellants  it  was  “resolved  to  recommend,  

subject to approval of the full court, to the Government of Punjab for   

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their  appointment  as  Civil  Judges  subject  to  availability  of   

vacancies”.  But  in  the  eighteenth  meeting  of  the  Administrative  

Committee  held  on 06.07.2011,  the Committee  took note  of  the  

direction  issued  by  the  Supreme  Court  to  appoint  twenty  two  

candidates selected in the years 1998, 1999, 2000 and 2001 who  

were not earlier appointed due to Sidhu scam.  At that time only six  

vacancies  were  available.  To  accommodate  those  twenty  two  

candidates,  Government  of  Punjab  had  sanctioned  sixteen  

temporary  posts,  with  the  stipulation  that  the  post  will  be  

abolished one by one as and when a vacancy becomes available.  

Relevant minutes of the eighteenth meeting of the Administrative  

Committee dated 06.07.2011 reads as under:-

“The writ petitions filed by 22 candidates selected in the years 1998,  1999, 2000 and 2001 were allowed on 27.05.2008 and were ordered  to  be  appointed  as  Civil  Judges  in  Punjab.   At  that  time  only  6  vacancies were available.  To give effect to the said judgment of this  Court,  16  temporary  posts  were  sanctioned on 22.07.2008 by  the  Punjab  Government  with  the  stipulation  that  the  posts  will  be  abolished one by one as and when a vacancy becomes available.  As  per  the  orders  of  Hon’ble  Supreme Court  in  that  matter,  only  17  candidates were issued appointment letters, 3 resultant vacancies of  the  year  2007-2008,  stood  consumed  with  the  joining  of  17  candidates.”

11. It is fairly well-settled that merely because the name of  

a  candidate  finds place  in the select  list,  it  would not  give  him  

indefeasible right to get an appointment as well.  The name of  a  

candidate may appear in the merit list but he has no indefeasible  

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right to an appointment (vide Food Corporation of India and Ors. v.  

Bhanu  Lodh  and  Ors.,(2005)  3  SCC  618;  All  India  SC  &  ST  

Employees’ Association & Anr.  v. A.  Arthur Jeen & Ors.  (2001) 6  

SCC 380 and Union of Public Service Commission v. Gaurav Dwivedi  

and Ors. (1999) 5 SCC 180.   

12. This Court again in the case of State of Orissa & Anr. v.   

Rajkishore Nanda and Ors. (2010) 6 SCC 777, held as under:

“14. A person whose name appears in the select list does not acquire  any indefeasible right of appointment. Empanelment at the best is a  condition of eligibility for the purpose of appointment and by itself  does not amount to selection or create a vested right to be appointed.  The vacancies have to be filled up as per the statutory rules and in  conformity with the constitutional mandate. …… 16. A select list cannot be treated as a reservoir for the purpose of  appointments, that vacancy can be filled up taking the names from  that list as and when it is so required…”

13. In  Manoj Manu and Anr.  v. Union of India & Ors. 2013  

(10)  SCALE  204:  (2013)  12  SCC  171,  it  was  held  that  merely  

because the name of  a candidate finds place in the select list,  it  

would  not  give  the  candidate  an  indefeasible  right  to  get  an  

appointment as well. It is always open to the government not to fill  

up the vacancies, however such decision should not be arbitrary or  

unreasonable. Once the decision is found to be based on some valid  

reason, the court would not issue any mandamus to government to  

fill up the vacancies.  As noticed earlier, because twenty two other  

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candidates  were  declared  successful  by  the  Supreme  Court  

pertaining to the selection of the years 1998, 1999, 2000 and 2001  

as Civil Judges (Junior Division), they were to be accommodated, as  

rightly  resolved  by  the  Administrative  Committee  in  the  meeting  

dated 06.07.2011. The three resultant vacancies of the year 2007-

2008  stood  consumed  with  the  joining  of  the  said  seventeen  

candidates and the same could not be filled up from the select list of  

that year. The decision of the Administrative Committee observing  

that  the  three  resultant  vacancies  stood  consumed  is  based  on  

factual situation arising there and cannot be said to be arbitrary.  

14. As  noticed  earlier,  as  against  twenty  seven  posts  of  

general  category  advertised  for  the  year  2007-2008,  thirty  one  

general category candidates have joined and are working.   In Rakhi  

Ray And Ors. vs. High Court of Delhi And Ors. (2010) 2 SCC 637,  

observing that the vacancies cannot be filled up over and above the  

number of  vacancies advertized, recruitment of  the candidates in  

excess of  the notified vacancies would amount to denial of  equal  

opportunity to eligible candidates, this Court held as under:-

“12. In view of above, the law can be summarised to the effect that  any appointment made beyond the number of vacancies advertised is  without jurisdiction,  being violative of  Articles  14 and 16(1)  of  the  Constitution of India, thus, a nullity, inexecutable and unenforceable  in law. In case the vacancies notified stand filled up, the process of  selection comes  to  an end.  Waiting list,  etc.  cannot  be used  as a  reservoir, to fill up the vacancy which comes into existence after the  

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issuance of notification/advertisement. The unexhausted select list/  waiting list becomes meaningless and cannot be pressed in service  any more.

13. In the instant case, as 13 vacancies of the general category had  been  advertised  and  filled  up,  the  selection  process  so  far  as  the  general category candidates is concerned, stood exhausted and the  unexhausted select list is meant only to be consigned to record room.”

15. On behalf of the appellants, it was contended that once  

posts were de-reserved and appointments were made as against the  

said de-reserved posts and the de-reservation was not challenged,  

High Court erred in going into the question of de-reservation.  As  

noticed  above,  out  of  52  posts  of  Punjab  Civil  Service  (Judicial  

Branch) advertized, 08 posts of reserved category were not filled up  

and Public Service Commission de-reserved the same.  Bifurcation  

of the said de-reserved posts is as under:-

1. Ex-servicemen, Punjab - 3 posts 2. Physically Handicapped, Punjab –2 posts  3. Sports Person, Punjab – 1 post 4. Scheduled Caste, Ex-servicemen, Punjab – 1post 5. Ex-servicemen, Backward Class – 1 post  

Out of the said eight de-reserved posts, one post was filled up by a  

backward class candidate and the remaining seven posts by general  

category candidates. As observed by the High Court, so far as two  

posts of physically handicapped, three posts of ex-servicemen and  

one  post  of  sports  person  is  concerned,  there  was  no  statutory  

prohibition in respect of de-reservation.  However, in respect of de-

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reservation of  one post  of  scheduled caste category,  Section 7 of  

Punjab  Scheduled  Castes  and  Backward  Classes  (Reservation  in  

Services)  Act,  2006  prohibits  de-reservation  and  stipulates  the  

manner in which such de-reservation could be done.  Section 7 of  

the  Scheduled  Castes  and  Backward  Classes  (Reservation  in  

Services) Act, 2006 as extracted in the impugned judgment reads as  

under:-

“7.(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 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.”  

16. By perusal of Section 7, it appears that as a general rule  

there is a bar on de-reservation of the post reserved for scheduled  

caste candidates. However, sub-clause (2) provides an exception to  

this  general  rule  by laying down that  in  the  public  interest  the  

authorities may by passing an order in writing de-reserve the seats  

reserved  for  candidates  belonging  to  scheduled  castes  category.  

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After insertion of clause (4B) in Article 16 of the Constitution vide  

Eighty First (Amendment) Act, 2000, de-reservation could not have  

been  done.  Under  Article  16(4B)  of  the  Constitution  of  India,  

unfilled vacancies reserved for scheduled castes or scheduled tribes  

candidates  are  to  be  carried  forward  independent  of  ceiling  of  

reservation of fifty per cent. The seats reserved for scheduled castes  

and scheduled tribes categories are to be filled only by specified  

category. Therefore, High Court was right in finding fault with the  

de-reservation of the seven posts which were filled by candidates  

belonging  to  general  category  and  we  do  not  find  any  reason  

warranting interference.   

17. Learned counsel for the appellants contended that when  

the other candidates were appointed in the post against de-reserved  

category,  the  same  benefit  should  also  be  extended  to  the  

appellants.  Article  14  of  the  Constitution  of  India  is  not  to  

perpetuate illegality and it does not envisage negative equalities. In  

State of U.P. And Ors. v. Rajkumar Sharma And Ors. (2006) 3 SCC  

330 it was held as under:-

“15. Even if in some cases appointments have been made by mistake  or wrongly that does not confer any right on another person. Article  14 of the Constitution does not envisage negative equality, and if the  State committed the mistake it  cannot be forced to perpetuate the  same mistake. (See  Sneh Prabha v.  State of U.P. (1996) 7 SCC 426;  Secy., Jaipur Development Authority v.  Daulat Mal Jain(1997) 1 SCC  35;  State  of  Haryana v.  Ram  Kumar  Mann(1997)  3  SCC  321;  

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Faridabad C.T. Scan Centre v. D.G., Health Services (1997) 7 SCC 752;  Jalandhar Improvement Trust v.  Sampuran Singh (1999) 3 494;  State  of Punjab v.  Dr. Rajeev Sarwal (1999) 9 SCC 240;  Yogesh Kumar v.  Govt. of NCT, Delhi (2003) 3 SCC 548;  Union of India v.  International  Trading  Co.  (2003)  5  SCC  437 and  Kastha  Niwarak  Grihnirman  Sahakari Sanstha Maryadit v. President, Indore Development Authority   (2006) 2 SCC 604.)”

Merely because some persons have been granted benefit illegally or  

by mistake, it does not confer right upon the appellants to claim  

equality.

18. Learned counsel for the appellants submitted that the  

appellants have been pursuing the matter for about eight years and  

even today there are vacancies in Punjab Judicial Service and thus  

prayed that direction be issued to the respondents to consider the  

case  of  the  appellants  as  against  the  existing  vacancies.  This  

contention  does  not  merit  acceptance.  Appointment  to  an  

additional post or to existing vacancies would deprive candidates  

who were not eligible for appointment to the post on the date of  

submission of the applications mentioned in the advertisement but  

became eligible for appointment thereafter.  After referring to Rakhi  

Ray, Rajkishore Nanda and other decisions, High Court rightly held  

that the candidates much more than the vacancies advertised have  

already  been  permitted  to  join  and  thus  the  appellants  cannot  

claim any legal right in respect of the posts of reserved category  

remaining unfilled.  The impugned judgment does not suffer from  

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any infirmity warranting interference in exercise of our jurisdiction  

under Article 136 of the Constitution of India.   

19. The  appeals  are  dismissed.  In  the  facts  and  

circumstances of the case, we make no order as to costs.

……………………..CJI.    (T.S. THAKUR)     

………………………..J.    (R. BANUMATHI)

New Delhi; May 12, 2016

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