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           Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 73 OF 2013

Raj Rishi Mehra and others     ...Petitioners

versus

State of Punjab and another         ...Respondents

WITH

WRIT PETITION (CIVIL) NO. 77 OF 2013

O R D E R

Whether the petitioners, whose names were included in the  

select list prepared for recruitment to Punjab Civil Service  

(Judicial  Branch)  are  entitled  to  be  appointed  against  the  

posts which became available due to the resignation of two of  

the appointees and the unfilled posts of reserved categories is  

the question which arises for consideration in these petitions  

filed under Article 32 of the Constitution.

   The Punjab  Public Service  Commission (for  short, ‘the  

Commission’) issued Advertisement No.1 in the year 2011 for  

holding examination for recruitment to the Punjab Civil Service  

(Judicial Branch). The break up of the posts advertised by the  

Commission was as under:

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1. General 47

2. Scheduled Castes,  Punjab.

09

3. Scheduled Castes, Ex- servicemen/Lineal  Descendent of Ex- servicemen, Punjab.

02

4. Balmiki/Mazhbi Sikh,  Punjab.

18 (Backlog 08)

5. Balmiki/Mazhbi Sikhs  ESM/LDESM, Punjab.

04 (Backlog 02)

6. Backward Classes,  Punjab.

09

7. Backward Classes, Ex- servicemen/Lineal  Descendent of Ex- servicemen, Punjab.

03 (Backlog 01)

8. Ex-servicemen/Lineal  Descendent of Ex- servicemen, Punjab.

09 (Backlog 03)

9. Physically  Handicapped, Punjab.

04 (Backlog 02)

10. Freedom Fighter,  Punjab.

01

11. Sports Person,  Punjab.

04 (Backlog 02)

The petitioners, who belong to general category, applied  

for  recruitment  against  the  general  category  posts.  In  the  

select  list  prepared  by  the  Commission,  the  names  of  the  

petitioners were shown at serial Nos. 49, 50, 51, 53 and 54.  

However, their names were not included in the register meant  

for  appointment  of  the  selected  candidates  because  47  

candidates, who were placed above them were appointed against  

the advertised posts of general category. From the reserved  

categories,  only  27  candidates  were  selected  and  they  were  

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appointed  against  the  posts  earmarked  for  their  respective  

categories.  

Ms.  Mohini  (Serial  No.31  in  the  select  list),  who  was  

appointed against a general category post, did not join and in  

her place Ms. Parul (Serial No.48) was appointed. Shri Rakesh  

Kumar  (Serial  No.32),  who  was  appointed  against  a  general  

category post, joined the service but resigned with effect from  

16.7.2012. Likewise, Ms. Shikha Thakur (Serial No.35), who was  

also appointed against a general category post, resigned with  

effect from 2.1.2013 and was relieved on 2.2.2013. The posts  

vacated  by  them  were  not  filled  and  were  included  in  the  

advertisement issued in 2012.

In the meanwhile, the petitioners submitted representation  

dated 26.4.2012 to the Principal Secretary, Home Department,  

Punjab for de-reservation of the reserved category posts for  

facilitating  their  appointment.  The  concerned  authority  

accepted their request and issued order dated 26.9.2012 for de-

reservation  of  5  posts.  Of  these,  one  post  was  from  the  

category  of  ex-serviceman,  two  were  from  the  category  of  

physically  handicapped  and  one  was  earmarked  for  sports  

persons.  Immediately thereafter, the petitioners were sent for  

medical examination and all of them were found fit.

The Government of Punjab sent communications to the High  

Court for the petitioners’ appointment against the vacant posts  

but  the  High  Court  did  not  agree  and  vide  letter  dated  

10.12.2012, the Registrar General of the High Court informed  

the Home Department that the names of the petitioners cannot be  

entered in the register.

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The petitioners have now sought intervention of this Court  

for issue of a mandamus to the High Court to enter their names  

in the relevant register and to the State Government to appoint  

them against the vacant posts.  Their prayer is founded on the  

assertion that the State Government is the sole repository of  

power  to  deicide  whether  or  not  the  reserved  category  post  

should be de-reserved and the High Court cannot refuse to enter  

their names in the relevant register and deny them appointment  

against the de-reserved posts.  They have pleaded that on the  

basis of examination conducted in 2007, 7 candidates of general  

category were appointed against the de-reserved posts and there  

is no reason for not giving similar treatment to them.  Another  

plea taken by the petitioners is that they are entitled to be  

appointed against the two posts vacated by Shri Rakesh Kumar  

and Ms. Shikha Thakur.   

The High Court has resisted the writ petitions.  In the  

counter affidavit filed on its behalf, the rationale of making  

appointments against the posts which were de-reserved in 2007  

has been spelt out in paragraphs 3 to 10, which read as under:  

“3. It is submitted that in the year 2007, the  Punjab  Public  Service  Commission  vide  Advertisement No. 05 had issued advertisement for  filling up the following vacancies of PCS(JB) :-

Sr.No. Name  of  the  Post/Category

No. of Posts

1. General 27

2. Ex-Servicemen, Punjab 3

3. Physically  Handicapped Punjab

2

4. Scheduled Castes,  Punjab

10

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(Out of these 10  posts  50%  posts  reserved  for  Balmiki/Mazhbi  Sikhs Punjab, if  available)

5. Scheduled Castes, Ex- Servicemen, Punjab

3

6. Backward Classes,  Punjab

5

7. Backward Classes, Ex- Servicemen, Punjab

1

8. Sports Person, Punjab 1

Total 52

4. That  vide  letter  dated  5.12.2007  by  the  Respondent No.2 the names of 42 candidates were  recommended for appointment as PCS(JB), who were  selected as a result of examination held in the  year 2007.

5. That the State Government (Respondent No.l)  vide its letter dated 11.1.2008 had requested the  respondent  No.2  to  enter  the  names  of  24  candidates,  who  were  selected  on  the  basis  of  abovesaid  examination.  The  State  Government  (Respondent No.l) had not intimated the answering  respondent the reasons behind not filling up the  remaining vacancies lying vacant.

6. That under the order dated 17.1.2008 passed  by the Hon'ble the Chief Justice of Punjab and  Haryana High Court, the names of 24 candidates  were entered in the High Court Register and vide  Respondent No.2's letter dated 18.1.2008 the State  Government  was  informed  accordingly.  The  State  Government was also requested to / forward the  names  of  other  candidates  as  per  the  recommendation of Respondent No.2 as 37 vacancies  were  available  for  appointment  as  PCS(JB)  officers.

7. That thereafter, the State Government vide  its letter dated  20.2.2008  had  forwarded  the  names  of 18 candidates with the request to enter  the names of said candidates in the High Court  Register  so  that  further  necessary  action  be  taken.

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8. That under the orders dated 25.2.2008 passed  by the Hon'ble the Chief Justice of Punjab and  Haryana High Court, the names of 18 candidates  were entered in the High Court Register and the  State  Government  was  informed  accordingly  vide  Respondent No.2's letter dated 27.2.2008.

9. That  thereafter,  Punjab  Government  vide  letter  dated  18.03.2008  had  intimated  the  answering  Respondent  that  the  Government  has  decided to appoint 8 candidates from the waiting  list  against  the  reserve  post  and  requested  answering Respondent to enter the names of these  candidates in the High Court Register.

10. That  Under  the  orders  dated  18.3.2008  of  Hon'ble the Chief Justice of Punjab and Haryana  High Court, the names of 8 candidates were entered  in  the  High  Court  Register   and   the   State  Government  was informed accordingly vide letter  dated 19.3.2008.”

As regards the 2011 advertisement, the stand of the High  

Court is that even though the names of the petitioners were  

included  in  the  waiting  list  for  a  period  of  one  year  

commencing  from  24.3.2012,  they  cannot  claim  appointment  

against the posts which became available due to resignation of  

the two general category candidates and the posts de-reserved  

by the State Government vide order dated 26.9.2012. It is also  

the pleaded case of the High Court that in the meeting of the  

Administrative Committee held on 21.1.2013, it was resolved not  

to make appointments from the waiting list because the State  

Government has already accorded approval for fresh recruitment  

against 71 posts including 6 reserved category posts.

In a separate affidavit, the State Government has claimed  

exclusive privilege to decide the issue of de-reservation of  

unfilled posts of reserved categories.  

Shri P.S.Patwalia, Senior Advocate and Shri Govind Goel,  

learned counsel appearing for the petitioners argued that their  

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clients are entitled to be appointed against the unfilled posts  

including those belonging to reserved categories, which were  

de-reserved  by  the  State  Government.  Shri  Patwalia  strongly  

relied upon note dated 24.3.2012 appended to the select list  

and argued that in view of the decision taken by the High Court  

to operate the waiting list, the petitioners cannot be denied  

appointment against two posts vacated by the general category  

candidates and 5 reserved category posts which were de-reserved  

by the State Government.  Learned senior counsel pointed out  

that the petitioners had filed writ petitions in January, 2013  

and  argued  that  they  cannot  be  denied  appointment  merely  

because  tenure  of  the  select  list  ended  sometime  in  March,  

2013.   Shri  Patwalia  and  Shri  Goel  emphasised  that  if  the  

waiting list prepared on the basis of examination of 2007 can  

be operated in the subsequent years, there is no reason why the  

select list prepared in 2011 is not being acted upon for making  

appointment against the vacant posts of general as well as the  

reserved categories.  

  Ms. Indu Malhotra, learned senior counsel appearing for  

the High Court argued that the petitioners are not entitled to  

be  appointed  against  the  vacant  posts  merely  because  their  

names were included in the waiting list.  She submitted that  

the posts vacated by Shri Rakesh Kumar and Ms. Shikha Thakur  

will be deemed to have available in the next recruitment year  

and the same cannot be filled by appointing the candidates from  

the  waiting  list.   Ms.  Malhotra  argued  that  the  exercise  

undertaken  in  2007-08  for  filling  up  the  unfilled  reserved  

posts cannot be treated as a precedent for ordaining the High  

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Court to include the names of the petitioners in the Register  

to facilitate their appointment against such posts.  Learned  

senior counsel submitted that this Court should not issue a  

mandamus for filling up the posts which became available due to  

resignation of Shri Rakesh Kumar and Ms. Shikha Thakur and the  

posts which were de-reserved by the State Government because  

the Commission has already issued fresh advertisement.  

We  have  considered  the  respective  arguments.   The  

rationale of making appointments against the de-reserved posts  

in 2007-08 is contained in paragraphs 3 to 10 of the affidavit  

filed on behalf of the High Court, which have been extracted  

hereinabove.  In paragraphs 11 to 22 of the affidavit, which  

are extracted below, the High Court has explained the rationale  

of not following the same course.   

“11. That  in  the  year  2011,  the  Punjab  Public  Service Commission vide Advertisement No. 01 had  issued advertisement for filling up the following  vacancies of PCS(JB) :-

Sr.No. Name  of  the  Post/Category

No.of  Posts

Punjab Civil Services  (Judicial Branch)

110

1. General 47

2. Scheduled Castes,  Punjab.

09

3. Scheduled Castes, Ex- servicemen/Lineal  Descendent of Ex- servicemen, Punjab.

02

4. Balmiki/Mazhbi Sikh,  Punjab.

18 (Backlog 08)

5. Balmiki/Mazhbi Sikhs 04 (Backlog 02)

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ESM/LDESM, Punjab.

6. Backward Classes,  Punjab.

09

7. Backward Classes, Ex- servicemen/Lineal  Descendent of Ex- servicemen, Punjab.

03 (Backlog 01)

8. Ex-servicemen/Lineal  Descendent of Ex- servicemen, Punjab.

09 (Backlog 03)

9. Physically  Handicapped, Punjab.

04 (Backlog 02)

10. Freedom Fighter,  Punjab.

01

11. Sports Person,  Punjab.

04 (Backlog 02)

12 That  the  Secretary,  Punjab  Public  Service  Commission,  Patiala  was  informed  by  Respondent  No.2 vide letter dated 27.3.2012 that as per the  result the Committee of the High Court has been  pleased to resolve that the first 47 candidates  from merit list of General Category, the first 17  candidates  from  merit  list  of  Schedule  Caste  Category  (09  vacancies  advertised  against  this  category  plus  08  unfilled  vacancies  of  Balmiki/Mazhbi  Sikh  Category),  the  first  09  candidates  from  merit  list  of  Backward  Class  Category,  all  07  candidates  appearing  in  merit  list   of   Balmiki/Mazhbi   Sikh   Category, all  candidates  appearing  in  the  merit  list  of  Balmiki/Mazbhi  Sikh-LDESM  Category  and  Backward  Class-LDESM Category Candidate and the first three  candidates appearing in the merit list of LDESM  Category be recommended to be appointed as Civil  Judges (Junior Division)-cum-Judicial  Magistrates  in   the   State of Punjab.   16 candidates next  in  order  of  merit  in  General  Category  and  3  candidates  next  in  order  of  merit  in  Backward  Class Category shall remain in waiting list for  one year from 24.3.2012.   In the event of any  vacancy occurring within one year on account of  non-joining or resignation of any candidate or due  to  any  other  unforeseen  circumstance,  the  resultant shortfall in the advertised vacancies  shall be filled up from the next 16  candidates in  order of merit appearing in General Category in  case such vacancies belong to general category and  

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from amongst the next 03 candidates in order of  merit appearing in Backward Class Category in case  such vacancy is of BC category. He was requested  to  prepare  the  consolidated  merit  list  in  accordance with   Rule 8 (Part-C) of the Punjab  Civil Service (Judicial Branch) Rules, 1951 and  get it published in the Government Gazette as per  provisions of Rule 10(i) of the said Rules.

13   That the State Government vide its letter  dated 15.5.2012 had requested the Respondent No.2  to enter the names of 83  candidates,  who were  selected  as  a result of examination held in the  year 2011.

14    That under the orders of the then Hon'ble  the  Acting  Chief  Justice,  the  names  of  83  candidates  were  entered  in   the   High  Court  Register and  vide letter dated 24.5.2012   the  State   Government   was informed accordingly.

15    That the State Government vide its letter  dated 29.6.2012 had sought the views of this Court  for  de-reserving_17  vacancies  of  reserve  categories.  

16    That   the   above   said   letter   dated  29.6.2012   was   placed  before  Administrative  Committee of the High Court of Punjab and Haryana  in its meeting held on 31.7.2012, wherein it was  resolved that the Government of Punjab be informed  that the High Court of Punjab and Haryana does not  agree with the proposal. However, the advertised  vacancies  may  be  filled  up  from  amongst  the  candidates  in  the  waiting  list  as  per  rules.  Accordingly, vide letter dated 3.8.2012 the State  Government was informed by the Respondent No.2.

17. That thereafter, the State Government vide  letter dated 26.9.2012,   had   intimated   that  one   post   of Ex-serviceman/Lineal  Descendent  of Ex-Serviceman of Punjab Category, two posts of  physically handicapped (General Category) and two  posts of Sports Persons (General Category) have  been de-reserved.

18. That thereafter, the Under Secretary Home,  Department of Home Affairs and Justice (Judicial-I  Branch), Government of Punjab, Chandigarh vide his  letter  dated  15.10.2012  has  requested  the  High  Court of Punjab and Haryana to enter the names of  following candidates in the High Court Register  under intimation to the State Government :-

Sr.No. Roll No. Name  of  the Category

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Candidate

1. 10643 Sh.Raj  Rishi  Mehra

General

2. 10623 Ms.Pukhrajbir  Kaur

General

3. 10642 Sh.Raj Kumar General 4. 10375 Ms.Kanchan  

Garg General

5. 10592 Sh.Pawan  Bishnoi

General

19. That the abovesaid matter was placed before  Judges in Administrative Committee   meeting  held on 5.12.2012, wherein it was resolved that  the request of the Punjab Government  is  declined.

20.  That  accordingly,  vide  letter  dated  10.12.2012, the State Government  was  informed  that  the  request dated 3.9.2012 and 15.10.2012  with regard to entering the names  of Sh.Munish  Bansal,  Sh.Raj  Rishi Mehra, Sh.Pukhrajbir Kaur,  Sh.Raj Kumar, Ms.Kanchan Garg and Sh.Pawan Bishnoi  has been declined.

21. That the State Government vide letter dated  21.12.2012 had again requested this Court to enter  the names of Sh.Munish Bansal, Sh.Raj Rishi Mehra,  Ms.Pukhrajbir Kaur, Sh.Raj Kumar, Ms.Kanchan Garg  and Sh.Pawan Bishnoi in the High Court Register.

22. That the matter was again placed before Judges  in the Administrative Committee meeting held on  21.1.2013,  wherein  it  was  resolved  that  the  Government of Punjab vide letter dated 3.11.2012  has already approved the recruitment for 71 posts  of  PCS(JB)  by  issuing  fresh  advertisement  and  these  71  posts  includes  the  above  mentioned  6  vacancies. The process of recruitment had already  been  initiated.  Therefore,  the  Administrative  Committee reiterated its earlier decision dated  5.12.2012.”

   It is true that in response to the advertisement  

issued in 2007, the State Government and the High Court made  

appointments from the waiting list against the posts which were  

made available by de-reserving the unfilled posts of reserved  

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categories  but  that  decision  cannot  be  cited  as  a  binding  

precedent because the rules regulating the recruitment do not  

impose a duty on the appointing authority to make appointment  

from  the  waiting  list.   That  apart,  what  is  of  immense  

significance  is  that  the  High  Court  has  taken  a  conscious  

decision  not  to  entertain  the  request  made  by  the  State  

Government  for  filling  up  the  unfilled  reserved  posts  by  

appointing  the  candidates  of  general  category  because  fresh  

advertisement had already been issued.

The question whether the candidates whose names are  

included  in  the  waiting  list  are  entitled  to  be  appointed  

against the unfilled posts as of right is no longer res integra  

and must be answered in negative in view of the judgments of  

this Court in Union of India v. Ishwar Singh Khatri 1992 Supp  

(3) SCC 84, Gujarat State Dy. Executive Engineers’ Association  

v. State of Gujarat and others 1994 Supp (2) SCC 591, State of  

Bihar v. Secretariat Assistant Successful Examinees Union 1986  

and others (1994) 1 SCC 126, Prem Singh and others v. Haryana  

SEB and  others 1996)  4 SCC  319, Ashok  Kumar and  others v.  

Chairman, Banking Service Recruitment Board and others (1996) 1  

SCC  283,  Surinder  Singh  and  others  v.  State  of  Punjab  and  

another (1997) 8 SCC 488, Madan Lal and others v. State of J&K  

and others (1995) 3 SCC 486, Kamlesh Kumar Sharma v. Yogesh  

Kumar Gupta and others (1998) 3 SCC 45, State of J&K and others  

v. Sanjeev Kumar and others (2005) 4 SCC 148, State of U.P. and  

others  v. Rajkumar Sharma and others (2006) 3 SCC 330, Ram  

Avtar Patwari and others v. State of Haryana and others 2007)  

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10 SCC 94 and Rakhi Ray and others v. High Court of Delhi and  

others (2010) 2 SCC 637.

In  Surinder  Singh’s  case,  this  Court  observed  as  

under:        

"A  waiting  list  prepared  in  an  examination  conducted by the Commission does not furnish a  source of recruitment. It is operative only for  the  contingency  that  if  any  of  the  selected  candidates does not join then the person from the  waiting list may be pushed up and be appointed in  the vacancy so caused or if there is some extreme  exigency the Government may as a matter of policy  decision pick up persons in order of merit from  the waiting list. But the view taken by the High  Court  that  since  the  vacancies  have  not  been  worked  out  properly,  therefore,  the  candidates  from the waiting list were liable to be appointed  does not appear to be sound. This practice, may  result in depriving those candidates who become  eligible for competing for the vacancies available  in future. If the waiting list in one examination  was  to  operate  as  an  infinite  stock  for  appointments, there is a danger that the State  Government may resort to the device of not holding  an  examination  for  years  together  and  pick  up  candidates  from  the  waiting  list  as  and  when  required. The constitutional discipline requires  that this Court should not permit such improper  exercise of power which may result in creating a  vested interest and perpetrate waiting list for  the candidates of one examination at the cost of  entire set of fresh candidates either from the  open or even from service

In Rakhi Ray’s case, this Court referred to a number of  

judicial precedents and held:

“It is a settled legal proposition that vacancies  cannot be filled up over and above the number of  vacancies advertised as “the recruitment of the  candidates in excess of the notified vacancies is  a  denial  and  deprivation  of  the  constitutional  right under Article 14 read with Article 16(1) of  the Constitution”, of those persons who acquired  eligibility for the post in question in accordance  with the statutory rules subsequent to the date of  notification  of  vacancies.  Filling  up  the  

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vacancies over the notified vacancies is neither  permissible nor desirable, for the reason, that it  amounts to “improper exercise of power and only in  a  rare  and  exceptional  circumstance  and  in  emergent situation, such a rule can be deviated  from  and  such  a  deviation  is  permissible  only  after  adopting  policy  decision  based  on  some  rationale”,  otherwise  the  exercise  would  be  arbitrary.  Filling  up  of  vacancies  over  the  notified vacancies amounts to filling up of future  vacancies and thus, is not permissible in law.”

In State of Punjab v. Raghbir Chand Sharma (2002) 1 SCC  

113, a two Judge Bench considered the questions as to when the  

recruitment process can be said to have come to an end and  

whether the select list can be operated qua the posts/vacancies  

which  become  available  due  to  resignation  of  the  existing  

incumbent  and  answered  the  same  in  negative  by  making  the  

following observations:   

 “With the appointment of the first candidate for  the  only  post  in  respect  of  which  the  consideration came to be made and select panel  prepared,  the  panel  ceased  to  exist  and  has  outlived its utility and, at any rate, no one else  in  the  panel  can  legitimately  contend  that  he  should have been offered appointment either in the  vacancy  arising  on  account  of  the  subsequent  resignation of the person appointed from the panel  or any other vacancies arising subsequently. The  circular  order  dated  22-3-1957,  in  our  view,  relates to select panels prepared by the Public  Service Commission and not a panel of the nature  under consideration. That apart, even as per the  circular orders as also the decision relied upon  for the first respondent, no claim can be asserted  and countenanced for appointment after the expiry  of six months. We find no rhyme or reason for such  a claim to be enforced before courts, leave alone  there being any legally protected right in the  first respondent to get appointed to any vacancy  arising  subsequently,  when  somebody  else  was  appointed by the process of promotion taking into  account  his  experience  and  needs  as  well  as  administrative exigencies.”

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In Mukul Saikia v. State of Assam (2009) 1 SCC 386,  

this Court held that once the appointments are made against the  

advertised posts, the select list gets exhausted and those who  

are placed below the last appointee cannot claim appointment  

against  the  posts  which  subsequently  become  available.  

Paragraph 33 of the judgment which contains discussion on this  

issue is reproduced below:

“At  the  outset  it  should  be  noticed  that  the  select list prepared by APSC could be used to fill  the notified vacancies and not future vacancies.  If the requisition and advertisement was only for  27 posts, the State cannot appoint more than the  number of posts advertised, even though APSC had  prepared  a  select  list  of  64  candidates.  The  select list got exhausted when all the 27 posts  were filled. Thereafter, the candidates below the  27 appointed candidates have no right to claim  appointment  to  any  vacancy  in  regard  to  which  selection was not held. The fact that evidently  and  admittedly  the  names  of  the  appellants  appeared in the select list dated 17-7-2000 below  the  persons  who  have  been  appointed  on  merit  against the said 27 vacancies, and as such they  could not have been appointed in excess of the  number  of  posts  advertised  as  the  currency  of  select list had expired as soon as the number of  posts  advertised  are  filled  up,  therefore,  appointments beyond the number of posts advertised  would amount to filling up future vacancies meant  for direct candidates in violation of quota rules.  Therefore,  the  appellants  are  not  entitled  to  claim any relief for themselves. The question that  remains for consideration is whether there is any  ground for challenging the regularisation of the  private respondents.”

In view of the above noted legal position, the decision  

taken by the High Court not to enter the petitioners name in  

the register to facilitate their appointment against the de-

reserved posts or the posts vacated by the general category  

candidates  cannot  be  faulted,  more  so  because  the  State  

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Government  had  already  approved  fresh  recruitment  and  the  

Commission  issued  advertisement  for  71  posts  including  6  

reserved category posts.

In the result, the writ petitions are dismissed.  

     .........................J.

(G.S. SINGHVI)

.........................J.  (V. GOPALA GOWDA)

New Delhi; August 13, 2013.

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