Mandeep Kumar vs U.T. Chandigarh on 9 March, 2022

Supreme Court of India

Mandeep Kumar vs U.T. Chandigarh on 9 March, 2022

Author: Hon’Ble Ms. Banerjee

Bench: Hon’Ble Ms. Banerjee, J.K. Maheshwari

                                                                REPORTABLE
                                   IN THE SUPREME COURT OF INDIA

                                    CIVIL APPELLATE JURISDICTION

                                   CIVIL APPEAL NO. 1908 OF 2022
    (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 4173 OF 2020)

          MANDEEP KUMAR AND OTHERS                                  ….APPELLANT(S)

                                                    VERSUS

          U.T. CHANDIGARH & OTHERS                                  ….RESPONDENT(S)


                                               JUDGMENT

J.K. Maheshwari, J.

Leave granted.

2. The instant appeal arises out of the judgment dated

17.01.2020, passed by the High Court of Punjab & Haryana

in Civil Writ Petition No. 24383 of 2016, whereby the

aforesaid Writ Petition was dismissed on the basis of

statement made by learned Additional Advocate General of

the State of Punjab regarding the decision taken by the

authorities to re­advertise the unfilled posts of Elementary

Trained Teachers (in short “ETT”) afresh and to fill up it in
Signature Not Verified

accordance with law. Being aggrieved by the said judgment,
Digitally signed by
Rachna
Date: 2022.03.09
16:30:36 IST
Reason:

the appellants have preferred the instant appeal.

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3. The controversy in nutshell brought by way of suo

moto PIL registered by the High Court of Punjab & Haryana

pertained to inaction of the State of Punjab in filling up of

vacancies of ETT, which were advertised vide two separate

advertisements dated 08.11.2015 and 30.07.2016. In the

abovesaid advertisements, total of 4500 and 2005 vacancies

of ETT were notified under various categories inclusive of

SC/ST, OBC, freedom fighter, handicapped etc.

respectively. After entertaining the Public Interest Litigation

and as per the interim directions of the High Court, the

posts of ETT had been filled up as per merit and category

wise. But due to not having selected eligible candidates of

SC/ST category those posts remained vacant. Now, it is the

grievance of the appellants that the unfilled posts of SC/ST

category may be filled from the eligible candidates of

Backward Class category, directing interchangeability of the

said vacant posts.

4. The facts as put forth in appeal, the appellants have

applied for the post of ETT in the category of Backward

Class. Pursuant to the advertisement, selection process was

carried out and appointment letters were issued to the

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selected candidates. All the notified posts of Backward

Classes have been filled up merit wise after the direction of

the High Court. In the said process of selection, 595 posts of

SC/ST category remained unfilled on account of “non­

availability” of eligible candidates in the said category. The

appellants herein are claiming appointment against those

vacant posts of SC/ST category on the anvil of policy

instructions regarding “Reservations of vacancies in State

Government Services of members of Backward Classes”,

issued by State of Punjab vide letter no. “1945­WG­54­

17246, dated 17.03.1954 (hereinafter to be referred to as

Policy letter No.17246). The aforesaid Policy letter provide

for “de­reservation/ interchangeability” of the post from

SC/ST category to OBC category or vis­à­vis in a

contingency of non­availability of eligible candidates belongs

to SC/ST or OBC, as the case may be. The appellants

submitted various representations to the concerned

authorities on the basis of the said Policy letter for

interchangeability of the posts of SC/ST into OBC category,

which as per appellants was not considered in a right

perspective. Now by order impugned as per the statement

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made by the State Government those posts are being re­

advertised, without redressing their grievance.

5. Mr. P.S. Patwalia, learned senior counsel for the

appellants contends that against un­filled posts of SC/ST

category in terms of instructions issued vide Policy letter

No. 17246 interchangeability of the post from SC/ST to

OBC category is permissible. Sub­section 2 of Section 7 of

The Punjab Schedule Castes and Backward Classes

(Reservation in Service) Act, 2006 (for short “the 2006 Act”)

does not restrain the State Government to fill up the un­

filled vacant post of SC/ST category by OBC category by

interchanging the same. The respondent­State despite an

order of the High Court has rejected the claim, relying upon

the instructions issued vide letter No. 1945­WG­54/17248

dated 17.3.1954 (hereinafter to be referred to as “Policy

letter No. 17248”) on 2.8.2019, though it is not applicable

to the subject in context. This fact was brought to the notice

of the Court, however an order was passed on 2.12.2020,

directing the respondent to pass order, strictly in

accordance with the penultimate paragraph of the order

dated 07.09.2018 of the High Court within four weeks. The

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State Government again vide order dated 11.12.2020,

rejected the claim mentioning the incorrect fact of

withdrawal of instructions of the Policy letter No. 17246. In

fact, the said instructions were restored vide letter No.

1346­SW1­74/11491 dated June 20, 1974 and is in

existence. Thus, the State Government sit tight over the

matter ignoring their own policies and making attempt to

rely the instructions, having no application in the issue.

After passing the impugned order dated 17.1.2020 and

during pendency of the present appeal, fresh advertisement

to fill up the Posts of ETT has been issued without

ventilating the grievance of the appellants regarding

interchangeability of the posts and to consider the

appellants for appointment on the above said Posts.

6. Per contra, Mr. Karan Bharihoke, learned counsel

representing the respondent Nos. 2 to 4 contends that as

per Section 7 of 2006 Act, de­reservation is not permissible.

In terms of the provisions of the 2006 Act and the

instructions issued by the State Government, the claim of

the appellants has been reconsidered by the Department of

Social Justice, Empowerment and Minority, and vide reply

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dated 5.1.2021 rejected the claim of the appellants. It is

urged that by issuing the fresh advertisement, the process

to fill up of the vacant posts of ETT in the State has started,

however the High Court has not committed any error while

passing the order impugned. The State Government in

compliance to the order of the High Court is duty bound to

fill up the vacant posts of ETT as expeditiously as possible,

therefore now process of selection has been started.

7. After having heard learned counsel for the parties and

on perusal of the facts of the present case, it is apparent

that to fill up the posts of ETT, advertisements were issued

on 9.11.2015 for 3522 posts and vide corrigendum dated

13.1.2016, additional 978 posts were again notified making

the total posts 4500. In another set of process of

recruitment, by subsequent advertisement dated 30.7.2016,

2005 posts of ETT were notified. Appellants applied under

both the advertisements and undergone the process of

selection for the posts of ETT, and also found place on

merit.

8. The Public Interest Litigation came to be registered by

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High Court because certain applicants belonging to the

Backward Class category protested by holding out threats to

commit suicide against the inaction of the State of Punjab. As

per the protestors, they had qualified their test and were

eligible for appointment as ETT. They further insisted that

a meeting be held regarding their demands with the Chief

Minister of Punjab. The said incident gathered media

attention, whereafter, the High Court of Punjab and

Haryana took “suo­moto” cognizance on the issue on

judicial side treating it as Public Interest Litigation,

registering the same i.e., as CWP. No. 24383 of 2016.

9. The said writ petition was disposed by the High Court

vide order dated 23.12.2016 with the following directions:

“We are of the view, that the methods adopted by the
protesters are unfortunate, improper and incorrect. It is
to be noticed that at one stage the persons protesting
had stated that once the process was initiated, they
would end their protest and now, even appointment
letter is being offered, but one of the protesters is
somewhat unrelenting. In the circumstances, the
further continuation of the Court proceedings may not
be proper. However, the matter was taken up as it was
viewed that the protesting youth may not loose their
lives by their misplaced notions and for this they needed
counselling and guidance.

Ms. Tanu Bedi, Advocate (Amicus Curiae) has
emphasized that the matter be kept pending for laying
down guidelines in future in such cases. Though we
would have liked to do so but for the present, it would
be just and expedient to put a quietus to the matter so

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that the person protesting can climb down from the
tower and seek his appointment as Elementary
Teacher after complying with the necessary formalities.
Besides, the State shall continue with its process of
offering appointment letters to the Elementary
Teachers whose turn on merit has reached so that the
recruitment process against the 4005 and the 2005
posts of Elementary Teachers is completed and the
vacant posts are filled.

Mr. H.C. Arora, Advocate as also Mr. Jagmohan Singh
Bhatti, Advocate (Amicus curiae) and Ms. Tanu Bedi,
Advocate (Amicus Curiae) State that they shall jointly
file a PIL in this regard. They may do so.

The present petition is, accordingly disposed of.”

10. Thereafter, C.M. No. 5766 of 2017 was filed before the

High Court on 3.4.2017 by the appellants informing about

the subsequent developments which transpired after

passing the said order. The response was sought from the

Director, Public Instruction (Elementary Education). A

comprehensive affidavit was filed apprising about the

vacancies and the steps taken by the Department of School

Education for de­reservation/interchangeability of the post

of Schedule Caste/Tribe category to OBC category.

11. As per the response, it is not disputed that 595 posts

of SC/ST category are not yet filled due to non­availability

of the eligible candidates in the said category. It is also not

disputed that out of the said process of selection, about 100

eligible candidates of OBC category were available. It is said

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the Suo Moto Writ Petition No. 24383 of 2016 was

registered to maintain law and order situation due to the

protest raised by unemployed youths climbed on tower on

account of not filling the posts of ETT. It was further stated

that merit candidates of Backward Classes have already

been appointed on the vacant posts of the said category.

Now they are claiming interchangeability of the 595 unfilled

posts of SC/ST category to Backward Class category as per

the Policy letter No. 17246. It is further urged Section 7 of

the 2006 Act confers powers to the State Government to

take decision if expedient in public interest.

12. On perusal of record, it reveals the High Court vide

order dated 9.2.2018 directed the Department of Welfare,

Government of Punjab to take a decision on the letter of the

Department of School Education affording due opportunity

of hearing to the applicants. The High Court also granted

time to the candidates of Backward Class category to file

the fresh representation for consideration. There after vide

order dated 9.5.2018 passed by the Principal Secretary,

Department of Welfare of Scheduled Castes, Backward

Classes and Minorities, these representations were rejected

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relying on the instruction letter No. 17248. It is true those

instructions were not applicable and they had to consider

the Policy letter No. 17246, relevant on the issue. There

after High Court vide order dated 7.9.2018 directed the

State Government to pass a fresh order in terms of the

Policy letter No. 17246. The State Government filed the

reply by way of additional affidavit before the High Court

and said that Department of Social Welfare, Punjab vide

letter dated 4.10.2018 declined to interchange the vacant

post of SC/ST category to the Backward Class. In the

meantime, Writ Petition (PIL) No. 108 of 2019 was filed

before the High Court making prayer to issue the direction

to the State of Punjab to fill up the said vacant posts of

Scheduled Caste category, which was disposed of vide

order dated 15.05.2019. The application filed by the

appellants in the said Writ Petition for modification was

also disposed off observing that while passing the order,

the appellants/applicants may also be given an opportunity

of hearing. Thereafter, Director, Education Department on

16.8.2019 wrote a letter to the Principal Secretary, Social

Justice, Empowerment and Minorities (Reservation Cell)

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seeking guidance regarding interchangeability. The

Department of Social Justice, relied upon the order dated

9.5.2018 and said the interchangeability of the posts is not

permissible. The High Court after the response, passed the

order impugned dated

17.01.2020 dismissing the writ petition with the following

observations:

“Having perused the record, it is also observed that a
public interest litigation CWP ­PIL ­108­2019 was filed
before this Court praying for issuance of a direction to
the State of Punjab to fill up the aforesaid vacant posts
of Schedule caste category, which petition has been
disposed of by this Court vide order dated 15.5.2019
directing the State of Punjab to consider the
representation of public interest petitioners. IT is
further observed that a miscellaneous application was
filed by certain OBC candidates seeking recall and
modification of the direction issued by this Court on
15.05.2019 in CWP­PIL­108­2019, which has also been
disposed of by this Court by order dated 30.5.2019 with
a modification that the applicants would also be granted
hearing by the authorities while taking a decision.

The respondents in their additional affidavit have
placed order dated 02.08.2019 on record passed by the
Director, Education, Punjab, in compliance with the
order passed by this Court in Public Interest Litigation
as well as the order of modification dated 30.05.2019.
From a perusal of the same, it is evident that the
authorities have examined the issue and have rejected
the claim of the applicants.

The learned Additional Advocate General, appearing for

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the State of Punjab submits that the authorities have
now taken a decision to re­advertise the posts and fill
up the same in accordance with law.

In view of the aforesaid facts and events that have
transpired, we do not find any reason to keep the
present petition pending which was initiated suo moto
by this Court on account of the illegal mode of protest
adopted by certain persons. More so, in view of the
fact that the issue that was subsequently taken up by
this Court in the present case, has already been
addressed and appropriate orders have been passed in
CWP­PIL­108­2019. In the circumstances, as nothing
further survives for decision in the present suo moto
writ petition, the same is accordingly dismissed, taking
the statement of the learned Additional Advocate
General, Punjab on instructions from Ms. Malka Rani,
Senior Assistant, DPI(EE) on record, that they are
taking up steps for filling up the posts in accordance
with law, including the steps of examining the issue of
seeking dereservation, if so advised, as contained in
Section 7(2) of the Punjab Scheduled Castes and
Backward Classes (Reservation in Service) Act, 2006.
In view of the aforesaid discussion, as the petition is
dismissed no further orders are required to be passed
by this Court in the applications filed by the
applicants.”

13. On filing the present appeal and after issuance of

notice, indeed on 2.12.2020 this Court passed the following

order

“Having heard Shri P.S. Patwalia and Shri Bharihoke at
same length, it appears clear to us that the High Court
order dated 07.09.2018 in particular:

“Learned State counsel prays for time to seek
instructions and to file an affidavit in this regard.

In case it is found that the earlier order passed
was based on instructions issued vide letter No.
1945­WG­54/17248 dated 17.3.1954, then the
respondent­Department shall pass a fresh order
on the basis of the instructions vide letter No.
1945­WG­54­17246 dated 17.3.1954.”

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has not yet been complied with. We had been shown an
order dated 02.08.2019 which merely reiterates the
07.09.2018 order without the Government applying its
mind to the penultimate paragraph of the High Court order
dated 07.09.2018 set out hereinabove.

We therefore, direct the respondent to pass an order
strictly in accordance with the penultimate paragraph of
order dated 07.09.2018 within four weeks from today.

The interlocutory application is disposed of accordingly.

Application for impleadment is dismissed as withdrawn.”

14. In response to the order, the additional affidavit is

filed before this Court, inter alia, contending that the

interchangeability of the posts of SC/ST category of ETT to

OBC category is not permissible with regard to the

instructions contained in Policy letter No. 17246, it is said

those instructions have already been withdrawn. It is stated

that the de­reservation/ interchangeability of the post from

SC/ST category to OBC category is not permissible as per

Section 7 of 2006 Act.

15. In this regard to appreciate the arguments, the

provision of Section 7 of 2006 Act is required to be quoted

for ready reference, which is reproduced as thus:

“7. De­reservation of reserved vacancy. – (1) There shall
be no de­reservation of any reserved vacancy by any
appointing authority in any establishment, which is to be

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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 sub­section
(1), if, in the public interest, it is deemed necessary to fill
up any vacancy referred to in that sub­section, the
appointing authority shall refer the vacancy to the
Department of Welfare of Scheduled Castes and
Backward Classes for de­reservation. 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 de­reserved, shall be carried forward against a
subsequent unreserved vacancy. “

16. From the bare reading of the aforesaid, it is clear that

de­reservation of any reserved vacancy which is to be filled

up by direct recruitment or by promotion cannot be done by

the appointing authority. In case due to non­availability of

the eligible candidates of any of the category, the posts

remain unfilled, the appointing authority may request to the

Department of Welfare of Scheduled Castes and Backward

Classes for de­reservation of the said unfilled vacancy. On

such request after recording satisfaction, if necessary or

expedient in the public interest, subject to the condition to

carry forward the said vacancy against subsequent

unreserved vacancy the order may be passed by the said

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department.

17. In this context, the instructions issued vide Policy

letter No. 17246 are also relevant, which are extracted and

reproduced as thus:

“Government have now decided that, on the basis of
their population, an additional 2 per cent of vacancies
in the State Government services should also be
reserved for members of the ‘Backward Classes’ and
that before vacancies reserved for Backward Classes
are thrown open to others, they should first be offered
to candidates of Scheduled Castes/Tribes, if available.
In the same way, before vacancies meant for Scheduled
Castes/Tribes are thrown open to others owing to
unavailability of suitable candidates, they shall be
offered first to the backward classes.”

18. The aforesaid Policy letter was withdrawn vide letter

No. 13565­4WGI­64/23892 dated 11th November, 1964, but

it was again restored adding some conditions vide letter No.

1346­SW1­74/11491 dated 20.06.1974; the relevant

extract of such instruction is also reproduced as thus:

“I am directed to refer to the subject noted above and
to say that prior to 11th November, 1964, in the event
of non­availability of Scheduled Castes/Tribes
candidate against a reserved vacancy, preference was
given to Backward Classes candidates and vice versa,
over other general candidates. This inter­
changeability of reserved vacancies was withdrawn –
vide para 4 of Punjab Government letter No. 13565­
4WG1­64/23892 dated 11th November, 1964, with the
result that if a reserved vacancy is not filled by the
candidate belonging to the particular category for
which it is reserved it is carried forward in accordance
with the current instructions, or, if this is not
possible, it is thrown open to other generally.

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2. This matter has been engaging the attention of
Government for some time past and it has now been
decided that after the carry forward rule has been
exhausted and a suitable scheduled cast candidate
has still not become available, a vacancy reserved for
this category should first of all be offered to a
candidate belonging to the Backward Classes, before
it is thrown open for general recruitment. In case a
Backward Class candidate avails of such a vacancy,
the vacancy properly reserved for a Backward Class
candidate later in the roster would then go to a
Scheduled Caste candidate instead.

3. The receipt of this communication may please
be acknowledged.

19. The clarification as issued vide letter No. 2/246/78­

SW3/7416 dated 10.12.1979 written by the Secretary to

Government of Punjab, Scheduled Caste and Backward

Classes to all heads of Departments is also relevant

however, reproduced as under:

“Subject: Reservation in services for members of
Scheduled Castes and Backward Classes­
Interchangeability of reserved posts between them.

I am directed to invite a reference of Punjab
Government letter No. 1346­SW1­74/11491 dated 20 th
June, 1994 and letter No. 771­SW1­76 dated 6 th April,
1976, on the subject noted above, and to say while
giving the benefits of interchangeability to a backward
Class candidate and vice­versa, the Department do not
obtain no­objection certificate from the Department of
Welfare of Scheduled Castes and Backward Classes
despite clear provision in the instructions. To make it
clear, under the instructions, no­objection certificate is
a must before the vacancy meant for Scheduled Castes
person is offered to a Backward Class candidate and
vice­versa.

2. Its receipt may please be acknowledged.”

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20. From the above it is clear that as per Section 7 of

2006 Act, de­reservation for the reserved vacancy by the

appointing authority is restricted. The said de­reservation

may be possibly directed by the Department of Welfare of

Scheduled Castes and Backward Classes if it is expedient in

public interest after recording satisfaction for such de­

reservation. In the said contingency the department shall

pass an order assigning those reasons. Thus, in the context

of 2006 Act also the de­reservation or interchangeability

may be possible with a rigour to exercise such power by the

department, namely; Department of Scheduled Castes and

Backward Classes and not by appointing authority. If we

examine the Policy letter No. 1945­WG­54­17246 which was

withdrawn on 11.11.1964, later restored vide letter dated

20.06.1974 makes it clear that those instructions are not in

contravention of the provisions of Section 7 of the 2006 Act;

in fact, it is as per the spirit of the 2006 Act. Therefore, in

the net result, the interchangeability of the vacant unfilled

posts of SC category may be possible due to not having

eligible candidates by the department concerned but not by

appointing authority. In the said context, the letters

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returned by the Education Department in favour of the

appellants to the department concerned are not of much

relevance in particular when the department concerned

have not agreed upon the request of interchangeability of

the unfilled posts of SC/ST category and refused to accept

the request of the appointing authority. In addition to the

aforesaid it is required to be observed in the manner in

which the protest was started by the candidates of the OBC

category was not justified. The High Court has rightly

observed that steps taken by the protestors were

unfortunate, improper and incorrect. The suo moto PIL No.

108­2019 was entertained to save the life of protesting

youth, and it should not be influenced by misplaced notions

and they may be counselled or guided by the authorities.

However, after issuing the direction, the candidates of the

OBC category were appointed in terms of their merit.

Thereafter, by filing the miscellaneous applications and

subsequent writ petitions the relief to fill up the vacant

posts of SC/ST category from the candidates of the

Backward Classes has been pressed upon, which has been

rejected by the High Court by the order impugned. At this

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stage it cannot be lost sight that the merit list was prepared

in furtherance to the advertisement of the year 2015­2016

and to accommodate the candidates of the said merit list.

Thereafter interchangeability for unfilled 595 vacancies of

SC/ST category has been prayed for. In our considered

opinion, issuance of such direction after 6 years of notifying

the selection list for filling up the unfilled vacancies of

SC/ST category by OBC would be wholly unjustified. In

addition, the selection list prepared in the year 2016 would

not survive after the lapse of a long time to fill up the

vacancies after interchangeability. It is to observe that

rejection of claims of appellants by the departmental

authorities relying upon wrong instructions or mentioning

incorrect fact of withdrawal of Policy letter No. 17246 would

not confer any right to appellants to claim the reliefs. Such

an act of the departmental authorities may be deprecated

but it would not confer any right to the appellants to seek

direction of interchangeability of the unfilled 595 posts of

ETT of SC/ST category to OBC category. Therefore, the

argument advanced by learned senior counsel Mr. Patwalia

in this regard is hereby repelled. As stated by the

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respondent, the process to fill up the vacant posts of ETT in

the state has already been advertised, which is in

accordance to law. Therefore, in view of the discussion

made hereinabove, we are not inclined to grant the relief as

prayed in this appeal.

21. In view of the foregoing discussion, we are not

inclined to interfere in the order impugned. Accordingly,

this appeal stands dismissed. No order as to costs.

………………………….J.

[ INDIRA BANERJEE ]

……………………………J.

NEW DELHI ;                          [ J.K. MAHESHWARI ]
MARCH 9, 2022.




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