Sunil Rathee vs The State Of Haryana on 23 July, 2020


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Supreme Court of India

Sunil Rathee vs The State Of Haryana on 23 July, 2020

Author: Aniruddha Bose

Bench: Sanjay Kishan Kaul, Ajay Rastogi, Aniruddha Bose

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                                                                   (Non-Reportable)

                                 IN THE SUPREME COURT OF INDIA
                                  CIVIL ORIGINAL JURISDICTION

                      TRANSFER PETITION (CIVIL) NO. 2592 OF 2019
         Sunil Rathee & Ors.                                           ..PETITIONERS


                                                      VERSUS
         The State of Haryana & Ors.                                   ..RESPONDENTS


                                                J U D G M E N T

ANIRUDDHA BOSE, J.

The petitioners in this proceeding seek transfer of a writ petition

registered as CWP No 7607 of 2019 ( O & M) (the writ petition)

pending in the High Court of Punjab and Haryana to this Court. The

main ground on which such plea is made is that this Court is hearing

certain appeals on near identical point to the one which forms subject

of controversy in the aforesaid Writ Petition. The said appeals are

registered as Civil Appeal Nos. 9546-9549 of 2016 (State of Gujarat

and Ors. etc. Vs. Ms Dulari Mahesh Basagre & Anr. etc). In the
Signature Not Verified

Digitally signed by
ASHA SUNDRIYAL

writ petition, under challenge is a notification issued by the State of
Date: 2020.07.23
18:56:12 IST
Reason:

Haryana bearing no. 733 SW (1|)- 2013 dated 27th September 2013
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providing for 10% vertical reservation for economically backward

persons in general category in certain fields of public employment.

According to the petitioners, such reservation would take the total

number of reserved posts beyond the 50% limit laid down by this

Court in the cases of Indra Sawhney Vs. Union of India [1992)

Supp (3) 217] and M. Nagraj Vs. Union of India [2006 (8) SCC

212]. The petitioners’ specific grievance is in relation to such

reservation in recruitment of shift attendants, category-I for which

posts they are aspirants from the general category. The process of

such recruitment was initiated by a recruitment advertisement issued

by the Haryana Staff Selection Commission (the Commission) on 20th

February 2016. It appears from the pleadings in the writ petition, a

copy of which has been annexed to the present petition, that out of the

2426 posts of “shift attendants” in category-I advertised, 674 posts

were for general category and the rest were reserved.

2. The writ petitioners have participated in the selection process

for category I of shift attendant which was initiated by a public

advertisement issued on 20th February 2016. There was 10%

reservation for economically backward persons category, commonly
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referred to as (EBPG category) in terms of the said notification of

2013. The petitioners in their writ petition have contended that they

are hopeful of being selected for the job in the event the 10%

reservation of the EBPG category is removed. It is in this perspective

they brought the writ petition before the Punjab and Haryana High

Court questioning the reservation provisions contained in the said

notification of 2013. I am apprised by the learned counsel appearing

for the parties that several other writ petitions have also been filed in

the same High Court with similar grievances. The main reason for

pressing the present petition under Article 139A of the Constitution of

India is that on identical point the Gujarat High Court has, in the case

of Dayaram Khemkaran Vs. State of Gujarat and Others,

invalidated an ordinance issued by the State of Gujarat (Gujarat

Ordinance No. 1 of 2016) providing reservation of seats in the

educational institutions in that State and of appointments and posts in

the services under the state in favour of economically weaker sections

of the unreserved categories and that decision is under appeal before

this Court. The Gujarat High Court has relied on, inter-alia, the case

of Indra Sawhney (supra), for coming to such conclusion in the
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judgment under appeal. Leave has been granted by this Court under

Article 136 of the Constitution of India in the petitions for special

leave to appeal filed by the State of Gujarat (C.A 9546-49/16) and

these appeals involve the same or similar constitutional and legal

questions on the basis of which the writ petition has been instituted

before the Punjab and Haryana High Court.

3. The State of Haryana has opposed the plea for transfer and

reliance has been placed on their behalf on a decision of this Court in

the case of Commissioner of Services Tax vs. Sri Selvaganapathy

and Co. [2018(4) SCC 578]. In this case, it has been observed:-

“The ground that the same issue is pending
before this court in Civil appeal No. 2013 of
2014 is not sufficient ground for transfer of the
writ proceedings from the High Court to this
Court in as much as once the decision of this
Court is rendered in the aforementioned civil
Appeal, the same can be brought to the notice
of the High Court and in the meantime the
High Court can be requested to defer the
proceedings in the writ petitions pending
before it.”

4. It has been urged on behalf of the State respondents that the

petitioners ought to wait for the judgment in the Civil Appeals instead
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of skipping one layer of the judicial hierarchy. It has also been argued

on behalf of the State that the petitioners had approached the High

Court after 4 years of issue of the notification dated 27 th September

2013. The other authority relied upon by the State is the case of

Lunawat Construction vs. Union of India [2019(5) SCC 467]. In

this case, it has been held that no prejudice would be caused to the

parties if there is adjudication of the matter by the High Court at the

first instance instead of the Supreme Court. But that observation was

made in a writ petition filed under Article 32 of the Constitution. That

authority does not assist the State respondents. There are three

applications for impleadment by Saurabh Nagwan (I.A. No. 10146 of

2020), Shrikant (I.A. No. 49252 of 2020) and Deepak (I.A. No. 49255

of 2020). They claim to be amongst the successful candidates from

the EBPG category for the said posts and they make this claim on the

basis of result declared on 8th March, 2019 by the Commission in

respect of the same selection process. On their behalf, it has been

argued that they have vital interest in the subject matter of this

proceeding as their engagement to the posts is held up because of the

pendency of the present transfer petition. They have sought to
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distinguish the legal position between the writ petition of which

transfer is sought for vis-à-vis the legal and factual basis of Civil

Appeal Nos. 9546-9549 of 2016 pending before this Court. It has

been pointed out on their behalf that the Gujarat High Court has

decided the matter prior to introduction of Article 15 (6) and Article

16 (6) to the Constitution of India by way of Constitution (One

Hundred and Third Amendment) Act, 2019, enabling the State to

provide for 10% reservation of economically weaker sections of the

citizens.

5. It has also been urged by the intervenors that in course of

hearing of the writ petitions before the High Court, the learned

Advocate General of Haryana on 16th May 2019 made a statement

that status-quo in respect of appointment in EBPG category would be

maintained by the State as it existed on that date till the next date of

listing, which was 12th July, 2019. It appears that the same position

still continues. The intervenors also seek to distinguish the factual

basis of pending appeal from that of the subject writ petition in that

the 10% reservation made by the Gujarat Ordinance and the Haryana

notification were on the basis of recommendations from different
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bodies and the case from the State of Gujarat had been finally decided

by the High Court whereas the aforesaid writ petition is still pending.

It was also outlined by the intervenors that the writ petitioners had

participated in the selection process and on being unsuccessful, they

were challenging the selection process. On this count, certain

authority has been cited. But these are really submissions on merit. So

far as the plea of the petitioners before this Court in the present

proceeding is concerned, such submissions on merit are not of much

relevance.

6. The provision of Article 139A of the Constitution relating to

withdrawal of a case from a High Court to this Court on the ground of

pendency before this Court of a case involving same or similar

questions of law contemplates fulfilment of two conditions. First, in

the case pending before this Court, the questions of law involved

ought to be the same or substantially the same as those involved in the

case in the High Court, the withdrawal of which can be asked for.

Secondly, this Court, while exercising the jurisdiction vested in it

under Article 139A of the Constitution must be satisfied that such

questions are substantial questions of general importance. Such
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satisfaction can be on this Court’s own motion, on an application

made by the Attorney General or on the basis of an application made

by a party to any such case. One of the key points involved in the

appeal of the State of Gujarat in the case of Ms Dulari Mahesh

Basagre & Anr (supra) is as to whether the Ordinance involved

therein is contrary to the ratio laid down by this Court in the case of

Indra Sawhney (supra) or not. The writ petition before the Punjab

and Haryana High Court is also anchored on the same authority, in

assailing the notification of 27th September 2013. I am also satisfied

that the writ petition pending before the Punjab and Haryana High

Court as also the appeal in the case of State of Gujarat (supra)

involve substantially the same questions of law and these questions

are of general importance. The fact that the Gujarat Ordinance was

promulgated before coming into effect of the Constitution (One

Hundred and Third amendment) Act, 2019 does not have significant

distinguishing impact so far as the questions forming the basis of the

said Civil Appeal and the Writ Petition pending before the Punjab and

Haryana High Court are concerned. I have already referred to the key
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point forming the subject of controversy in the said Appeal and the

Writ Petition.

7. The decision in the case of Sri Selvaganapathy (supra) was

cited by the State respondents in support of their contention that the

pending writ proceedings could wait for the final outcome of the Civil

Appeal. On behalf of the petitioners, on the other hand, the case of

L.K. Venkat vs. Union of India [2012 (5) SCC 292] was referred to.

This was a case arising out of a Writ Petition filed in the Madras High

Court for quashing of order of rejection of clemency petition by the

President. In that case, one of the grounds for seeking transfer was

that the questions raised in the writ petition was identical to the

question raised in two other cases pending before this Court, being

Writ Petition (Criminal) D. No. 16039 of 2011 and S.L.P (Criminal)

No. 1105 of 2012. This Court found in the case of L.K. Venkat

(supra) that the common question was whether long delay in deciding

a mercy petition entitled the convict to seek commutation of death

sentence or not. The petition was allowed by this Court.
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8. Article 139A vests this Court with jurisdiction to direct transfer

or withdrawal of a case pending in a High Court to this Court on two

grounds, to which I have referred earlier. On satisfaction of these

conditions, this Court can make direction in exercise of its discretion

for withdrawing the case for disposal of the same by itself. The

manner in which such discretion would be exercised would vary from

case to case. The decision of this Court in Sri Selvaganapathy and

Co. (supra) cannot be held to have laid down any absolute proposition

of law guiding transfer or withdrawal of a case from a High Court to

this Court. The course mandated by this Court in the case of Sri

Selvaganapathy and Co. (supra) was in the facts of that particular

case. So far as the three intervention applications are concerned, in

dealing with a petition under Article 139A of the Constitution of

India, I do not find any reason to allow the applicants’ plea for being

impleaded. I do not see any possibility of their interest being

prejudiced if I direct withdrawal of the writ petition from the Punjab

and Haryana High Court to this Court. Once the writ petition is

withdrawn or transferred to this Court, they can always come back
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with similar plea for impleadment. All the three applications for

intervention shall accordingly stand dismissed.

9. The points involved in the said Civil Appeal and the Writ

Petition pending in the High Court of Punjab and Haryana require

adjudication of substantially the same questions of law. These

questions have arisen in two different States and in my opinion these

are substantial questions of general importance.

10. I accordingly direct withdrawal of CWP No. 7607 of 2019

(Sunil Rathee and Ors. Vs. State of Haryana & Ors.) pending in the

High Court of Punjab and Haryana to this Court for disposal of the

said Writ Petition.

11. Let the records of the said case be transferred to the Registry of

this Court by the Registrar General, High Court of Punjab and

Haryana forthwith. On receiving the records, the same shall be placed

before the Hon’ble Bench before hearing Civil appeal No. 9546-49 of

2016 for appropriate direction. The Transfer Petition stands allowed.

12. All other connected applications shall also stand disposed of in

the same terms.

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13. There shall be no order as to costs.

…………………………………………J.

(Aniruddha Bose)

New Delhi
Dated: 23rd July, 2020



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