REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL  APPELLATE  JURISDICTION

CIVIL APPEAL NO.  11365  OF 2018 (Arising from S.L.P. (C) No. 13676 of 2017)

GAGANDEEP SINGH      … APPELLANT (S)   

VERSUS

THE STATE OF PUNJAB & ORS.  … RESPONDENT (S)

J U D G M E N T

KURIAN, J.

Leave granted.

2. Appellant was No.3 in the select list for appointment to the

post of District  Programme Officer.  He belongs to the reserved

category of Balmiki/Majbhi Sikh. The selection commenced with

the advertisement by the Punjab Public Service Commission on

21.12.2010. The written examination was conducted in the year

2012.  One Gurpreet  Singh was appointed against  the reserved

vacancy (Balmiki/Majbhi Sikh).  After one year he resigned from 1

the post on 25.04.2014. According to the appellant the vacancy

thus created should be filled up by the next available person from

the same community.  It  is  also  the case of  the  appellant  that

though the appellant is No. 3 in the select list, No.2 (Manjinder

Singh) not being interested and not having pursued the litigation,

the appellant should be appointed.  The Department rejected the

claim of the appellant stating that once an appointment is made,

the reserved point was consumed and hence the appellant cannot

be considered.  Hence,  he filed a writ  petition before the High

Court.   The  learned  Single  Judge  dismissed  the  writ  petition

holding  that  the  appellant  did  not  have  a  legal  right  to  claim

appointment and that the vacancy had to be re-advertised.  

3. In the intra court appeal, as per the impugned judgment, the

Division Bench took note of the submission that the process for

subsequent selection had been initiated and thus dismissed the

appeal.  

4. It  is  the  contention  of  the  appellant  that  as  per  the

guidelines issued by the welfare Department dated 08.04.1980

read  with  subsequent  instruction  dated  10.01.1996,  the  point

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filled up by a candidate belonging to the reserved category and

subsequently  vacated  on  account  of  resignation  or  otherwise

cannot be considered to be consumed.  It is to be filled up out of

the candidates available in the select list.  To quote the relevant

para from the instructions dated 10.01.1996:

“According to these instructions, the point filled up by a  candidate  belonging  to  reserved  category  and subsequently  vacated  on  account  of  resignation  or otherwise by one of the incumbents is not considered to  be  consumed.  This  point  is  available  for  the reserved categories and is required to be filled up out of the candidates available as a result of selection in order of their seniority.”

It is also stated in the instruction that “… there is no discretion

with the Administrative Department in this regard”.  However, the

contention of the State is that the merit list having outlived its life

on account of the appointment, nobody can claim appointment

from  such  a  list.  We  are  afraid  this  contention  cannot  be

appreciated.  No  doubt,  no  candidate  has  a  vested  right  for

appointment.  But  at  the  same  time,  the  appointing  authority

cannot  frustrate  the  whole  instruction  behind  and  purpose  of

preparation of a select list.  If  a vacancy had arisen before the

expiry  of  the  list,  going  by  the  instruction,  the  next  available

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candidate in the select list had a legitimate expectation and claim

for being considered for appointment. The vacancy had arisen in

2014 before the commencement of fresh selection in 2016. Even

for the subsequent selection, the post reserved for Balmiki/Majbhi

Sikh  is  not  notified.   The  reservation  is  for  other  Scheduled

Castes. Learned counsel for the State has stated that vacancy of

Balmiki/Majbhi Sikh has not been filled up and it is still available.

Therefore,  the  slot  reserved  for  Balmiki/Majbhi  Sikh  is  still

available  and  as  per  the  instruction  which  we  have  extracted

above, the same has to be filled up from the merit list.   In the

additional  affidavit  filed  by  the  State  it  is  pointed  out  that

appellant was not the next person for  consideration.   It  is  one

Maninder Singh (No.2) and he had also given a representation.

Since the slot is available, the State has to fill up that vacancy

from the reserved community from the merit list. In case No. 2 is

not interested, naturally it will go to the appellant.  

5. The  appeal  is  disposed  of  with  the  direction  to  the

respondents  to  make  appointment  in  respect  of  Valmiki/Majbhi

Sikh from the merit list published on 20.06.2012. Needful be done

within a period of two months. In order to avoid any dispute on 4

seniority, it is made clear that the incumbent concerned will get

seniority only from the date of appointment. No costs.  

……………..……………………J.                                                    (KURIAN JOSEPH)

……………..……………………J.                (S. ABDUL NAZEER)

NEW DELHI; NOVEMBER 27, 2018.

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