ORIGINAL JURISDICTION: Writ Petition Nos. 4480 of 1980 and 2962 of 1981
(Under article 32 of the Constitution of India)
S.N. Jha for the Petitioner in W.P. 4480/80.
Girish Chandra for the Petitioner in W.P. 2962/81.
M.M. Abdul Khadar and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, C. J. The petitioners, Prem Prakash and Dal Chand Anand, are members of a scheduled caste. By these writ petitions under article 32 of the Constitution, they ask for a writ of mandamus directing the respondents to appoint them against the vacancies reserved for members of Scheduled Castes and Scheduled Tribes in the Delhi Judicial Service. They also ask for a writ of prohibition to the effect that the respondents should not fill up the reserved vacancies for which they competed, either by holding a fresh examination or by appointing candidates who had qualified in any previous examination. The Union of India, the Administrator of the Union Territory of Delhi and the Registrar of the Delhi High Court are respondents 1, 2 and 3 to these petitions.
On September 26, 1979, the Registrar of the Delhi High Court published a newspaper advertisement that the Delhi High Court will hold an examination for recruitment of officers to the Delhi Judicial Service on January 11, 12 and 13, 1980 in the time scale pay of Rs. 650-1200. The advertisement stated that the total number of vacancies was 16, out of which 2 were reserved for Scheduled Castes and 1 for Scheduled Tribes. In addition, according to the advertisement, there were 2 carry-forward vacancies for members of Scheduled Tribes. In case of non-availability of Scheduled Tribes candidates, those vacancies were liable to be transferred as reserved vacancies for Scheduled Castes candidates.
A competitive examination was held in pursuance of the said advertisement in accordance with the Delhi Judicial Service Rules, 1970 which were framed by the Lieutenant Governor of Delhi in consultation with the High Court of Delhi. Rules 18 and 28 read thus:
"Rule 18-The Selection Committee shall prepare a
list of candidates in order of merit. Such list will be
forwarded to the Administrator for filling the
vacancies then existing or any vacancy that may occur
within a period of one year of the preparation of the
list."
"Rule 28-Appointments made to the Service by
competitive examination shall be subject to order
regarding special representation in the Service for
Scheduled Castes and Scheduled Tribes issued by the
Central Government from time to time."
The Brochure on ’Reservation for Scheduled Castes and Scheduled Tribes in Services’, (5th ed., 1978) issued by the Government of India, Dept. of Personnel and Administrative Reforms, Ministry of Home Affairs contains orders and instructions issued by the Government of India from time to time on the question of reservation of vacancies for Scheduled Castes and Scheduled Tribes candidates. The relevant paragraphs of that Brochure read as follows:
"2.1 Subject to Exemptions and Exclusions referred
in Chapter 3, the following reservations are in force
in favour of SC and ST in filling vacancies in posts
and services under the Govt. of India.
(1) Direct recruitment on an all India basis:-
SC ST
(a) By open competition(i.e., 15% 71/2%
through the UPSC or by
means of open competi-
tive test held by any
other authority)".
"4.2 The actual number of vacancies to be reserved
for SC and ST in any recruitment should be determined
on the basis of the points in the roster and also
taking into account the reservations brought forward
from the previous year, the total number of
reservations not exceeding normally 50% of the total
number of vacancies filled in that year. However, the
carry forward reserved vacancies would be available
together with the current reserved vacancies for
utilisation even where the total number of such
reserved vacancies exceed 50% of the vacancies filled
in that year provided, the over all representation of
SC/ST in the total strength of the concerned grade or
cadre is found to be inadequate, i.e., the total number
of SC/ST candidates in that grade has not reached the
prescribed percentage of reservation for SC/ST
respectively, in the grade, as a whole".
"9.2 Advertisement of reserved vacancies for posts
filled by direct recruitment through examination:-
Where direct recruitment is made through
examination, for reserved as well as unreserved
vacancies, a single advertisement would be issued for
such examination but the number of the vacancies
reserved for SC and ST would
be specified clearly in it and in case the required
number of SC or ST candidates are not available even by
applying relaxed standards for the vacancy/vacancies
reserved for them, the remaining vacancy/vacancies
should be filled by general candidate after
dereservation of such vacancy/vacancies, subject to the
reservations being carried forward as required."
"11.1 Carry over of reservations:-
If a sufficient number of reserved communities
candidates fit for appointments against reserved
vacancies are not forthcoming, such vacancies can be
dereserved after following prescribed procedure for
dereservation as in Chapter 10 and thereafter they can
be filled by candidates of other communities, but the
reservations shall be carried forward to subsequent
three years of recruitment (except in the case
carry forward of unfilled reserved vacancies, the total
number of reservations not exceeding normally 50% of
the total number of vacancies to be filled in that
year. The surplus, if any, above 50% when the ceiling
of 50% is applied, shall be carried forward to the
subsequent year of recruitment, subject, however, to
the condition that the particular vacancies carried
forward do not become time-barred due to their becoming
more than three years old. However, the carried forward
reserved vacancies would be available together with the
current reserved vacancies for utilisation even where
the total number of such reserved vacancies exceeds 50%
of the vacancies filled in that year provided, the
overall representation of SC & ST in the total strength
of the concerned grade or cadre is found to be
inadequate, i.e., the total number of SC/ST candidates
in that grade has not reached the prescribed percentage
of reservation for SC/ST respectively, in the grade, as
a whole".
"Note (2):-Any recruitment of SC/ST candidates
will first be counted against the additional quota
brought forward from the previous years in their
chronological order. If SC/ST candidates are not
available for all the vacancies, the older, carried
forward vacancies should be filled first
and the comparatively later carried forward vacancies
should be further carried forward".
The petitioners appeared for the examination and passed it, though by relaxation of the minimum standard prescribed for passing the examination. They were then asked to appear at the viva voce test conducted by the Selection Committee, which they did. Since, only seven open candidates and four Scheduled Caste candidates qualified in these tests, the High Court prepared a merit list of 11 candidates as against 16 vacancies which were advertised. Dal Chand Anand, who is petitioner in Writ Petition No. 2962 of 1981, was 10th in the merit list while Prem Prakash, who is petitioner in Writ Petition No. 4480 of 1980, was 11th in that list. They were respectively 3rd and 4th in the merit list amongst the 4 Scheduled Caste Candidates. Since they did not figure in the final list of candidates selected by the Administrator, they have filed these petitions to challenge their exclusion and non-appointment.
A counter-affidavit has been filed on behalf of respondent 3 by Shri Ramesh Sharma, Assistant Registrar of the Delhi High Court. The position taken up by the Delhi High Court in that affidavit may be summarized thus: The Delhi Judicial Service was constituted on August 2, 1971. Rule 28, which provides for special representation for members of the Scheduled Castes and Scheduled Tribes, is applicable to the recruitment made through a competitive examination only and, therefore, no reservations were made either in favour of Scheduled Castes or Scheduled Tribes at the stage of the initial recruitment to the Service, which was not by competitive examination. Representations were, however, made to the Ministry of Law and Justice as a result of which, the Delhi Administration was instructed administratively to take suitable steps, if necessary by amendment of the recruitment Rules, so as to provide for reservations for the Scheduled Castes and Scheduled Tribes at the initial constitution of the Service also. In a meeting of officers of the Ministry of Law and Justice, the Delhi Administration and the High Court, which was held in November, 1971, it was decided that 15 per cent of the vacancies filled in the Delhi Judicial Service should be reserved for Scheduled Castes and 71/2 per cent for Scheduled Tribes and that, vacancies which ought to have been reserved for these categories at the initial recruitment should be carried forward to the following year. The statutory rules were not amended in pursuance of this decision, which is but one instance of the wide chasm which exists between the lip service paid to the need for reservations for backward classes and the actual performance in terms of social awareness.
The counter-affidavit says that the 6th competitive examination at which the petitioners appeared was held in 1980. 16 Vacancies were notified, out of which 11 were for open candidates, 2 for Scheduled Castes and 3 for Scheduled Tribes. Two out of the three vacancies reserved for Scheduled Tribes were interchangeable in the sense that, if candidates from Scheduled Tribes were not available, those vacancies could be added to the quota reserved for Scheduled Castes.
The counter-affidavit of the High Court contains a candid admission in paragraph 17 that when, in 1980 and 1981, the High Court examined the question of reservation of vacancies for Scheduled Castes and Scheduled Tribes right from the stage of initial constitution of the Service in 1971, it found that "there was apparently a violation of statutory Rules and the vacancies had been wrongly calculated by the Registry of the High Court". The High Court rectified its error by recommending the appointment of 2 Scheduled Caste candidates for the 1980 vacancies from amongst the candidates who had qualified in the 1979 competitive examination but who, on account of a mistaken calculation, were not appointed to the reserved seats. We are happy to find that consistency in adhering to errors is not the hobgoblin of our High Courts.
The factual position which emerges out of the averments in the Writ Petitions and the counter affidavit filed on behalf of the High Court is that though 16 vacancies were advertised, only 11 vacancies could possibly be filled up. The reason is that only 11 candidates passed the competitive examination. Seven out of these 11 had competed for open seats while four had competed for seats reserved for the Scheduled Castes If the four reserved seats could be filled up by the appointment thereto of candidates who appeared in the 1980 examination, there would be no difficulty in accommodating the petitioners because. they are 10th and 11th in the merit list of 1980. Normally, vacancies which are intended to be filled by holding an examination in any particular year, are filled from amongst candidates who had appeared for that examination. The situation in this case is, however, complicated by the fact that two Scheduled Caste candidates, Ajaib Singh and Ram Swarup, who had appeared for the competitive examination in the previous year, that is in 1979, were wrongly denied appointments. They had passed the examination and reserved vacancies were available in which they could and ought to have been appointed. Ajaib Singh filed a Writ Petition in this Court (No 312 of 1980) which was allowed by us by an order dated September 2, 1981. That order reads thus :
"We are informed that the Delhi High Court has
decided in a full Court meeting to recommend the names
of the petitioner Ajaib Singh and another candidate Ram
Swarup, for appointment to the post for which they had
applied, namely, the post of the Sub-Judge. The
duration of the panel which was prepared for the year
1979 expired on August 16, 1980, That makes it
necessary to direct that the names of the petitioner
Ajaib Singh and the other candidate Ram Swarup should
be included in the panel for the year 1979 and the
appointment of these persons be made by the Delhi
Administration despite the expiration of the period of
that panel."
The High Court took the particular decision in a full Court meeting because it found, and rightly so, that Ajaib Singh and Ram Swarup were denied appointments due to an error on the part of its Registry in calculating the number of reserved seats which were available in the year 1979. The error committed by the High Court Registry is to be regretted and we hope that errors which betray lack of care in matters which make or mar a person will not be repeated. But the question which arose for the administrative consideration of the High Court was whether the injustice done to the two candidates should be perpetuated on the specious plea that, after all, the High Court had taken a certain decision and that decision must be respected, whether it is administrative or judicial. We are glad to find that the High Court did not stand on a false sense of prestige and rectified the injustice done to the two candidates by correcting an error for which they were not to blame. On our part, we considered it unfair that they should be denied appointments and be made to suffer injustice for the error of the Registry in applying the reservation formula. The counter-affidavit filed on behalf of the High Court shows that the first two seats, from out of the four seats which were available to the Scheduled Caste candidates in the year 1980, have been allotted to Ajaib Singh and Ram Swarup, subject to the result of these writ petitions.
It is ironical that the rectification of injustice done to some two persons should result in injustice to two others. But, that is exactly what has happened in this case, as if to illustrate that one man’s food is another man’s poison. The contention of the High Court is that though the petitioners were in the merit list of 11 persons for the year 1980, they could not be appointed as Sub-Judges because, Ajaib Singh and Ram Swarup who were wrongly excluded from the reserved appointments of 1979 had to be accommodated in the merit list of 1980 and, after adjusting them against the reserved vacancies of 1980, no reserved vacancies were left for the candidates who were placed in the merit list of 1980. When, in furtherance of the decision taken by the Full Court meeting of the High Court, we directed on September 2, 1981 that the two candidates of 1979 must be included in the 1979 panel and appointed as Sub-Judges despite the expiry of the duration of that panel, little did we realise, and it was not so stated before us, that the appointment of those two candidates of 1979 will mean the ouster of these two candidates of 1980. Such a strange result is to be avoided, if not at all costs, at least within the framework of the Rules and the administrative instructions governing this matter. Justice to one group at the expense of injustice to another is perpetuation of injustice in some form or the other.
The counter-affidavit of the Assistant Registrar explains the arithmetic of the High Court decision as to why the petitioners were excluded from the selections of 1980. History has the habit of repeating itself and, with great respect, the High Court has once again fallen into an error while deciding whether, after accommodating Ajaib Singh and Ram Swarup in the 1980 selection, reserved vacancies were still available in which the petitioners could be appointed. The explanation of the High Court may best be stated in the words of its Assistant Registrar. He says in paragraph 21 of his counter-affidavit :
"It is submitted that in view of the fact that
only 11 candidates qualified in the examination of
which 7 were general candidates. Therefore, in
accordance with the advice contained in the D. O.
letter No. 36034/19/79-Est (SCT) dated August 13, 1979
of the Department of Personnel and Administrative
Reforms, as against 7 general candidates only one
Scheduled Caste candidate could be taken and
accordingly, 7 general candidates and 1 Scheduled Caste
candidate and in addition 2 more Scheduled Caste
candidates as against 2 carried forward exchangeable
vacancies
of Scheduled Tribes were recommended for appointment to
the Delhi Judicial Service."
The counter-affidavit says that the name of Dal Chand Anand, who is petitioner in Writ Petition No. 2962 of 1981, was recommended for appointment since he was 3rd amongst the four Scheduled Caste candidates but that the, said recommendation was made under an erroneous belief that a vacancy was available in which he could be appointed. When the mistake was realised by the High Court, his name was dropped. In so far as the other petitioner, Prem Prakash, is concerned, the explanation of the Assistant Registrar is that no vacancy was available at all in which he could be appointed since, he was 4th in the list of Scheduled Caste candidates.
The error from which the calculation of the High Court suffers is that the number of vacancies available for the Scheduled Caste candidates was fixed by it according to the number of candidates who qualified for the general seats. The counter-affidavit states expressly that the availability of vacancies for candidates of the reserved category was determined on the basis that only 7 candidates had qualified for the general seats. This, according to us, is neither justified by the Rules and administrative instructions nor indeed does such a method of fixation of reserved vacancies disclose any acceptable basis. 16 Vacancies were advertised in the first instance out of which, 11 were for general candidates and 5 for reserved categories. It may be assumed that the Administration is not bound to fill all the vacancies which are advertised and indeed, if the number of candidates who qualify in the competitive examination is less than the number of vacancies which are advertised, it is obvious that the vacancies which can be filled will be less than the vacancies which are advertised. But the availability of vacancies for the reserved categories cannot be made to depend upon the accidental circumstance of how many candidates have qualified for general seats. In the first place, that would be contrary to the instructions contained in paragraphs 4.2 and 9.2 of the Brochure of 1978. Secondly, such a method will lead to the absurd and undesirable consequence that no candidate of the reserved category will be appointed at all, if only one or two candidates from the general category qualify in the examination. The correct approach is to fix the number of vacancies available for the reserved candidates on the basis of the total number of vacancies which are intended to be filled at any particular point of time. According to paragraph 2.1 of the Brochure, 15% of the total vacancies are required to be reserved for the Scheduled Caste candidates and 7 1/2% for the Scheduled Tribe candidates. Therefore, the High Court could not have fixed the number of vacancies available to the reserved candidates on the basis that only 7 persons had qualified for the general seats. If a decision was taken to fill 10 or 11 posts only, the number of reserved vacancies should have been fixed upon that basis and not on the basis that only 7 candidates had qualified for the general seats. The High Court should have corrected its error in these two cases with the same alacrity with which it corrected its error in the case of the two Scheduled Caste candidates who had qualified in 1979.
There is an additional reason in support of the view which we are disposed to take. On February 8, 1982 the Ministry of Home Affairs, Department of Personnel and Administrative reforms, issued a notification to the following effect :
"Sub:-Validity period of lists of selected
candidates prepared on the basis of direct
recruitment/Department competitive
Examination.
The undersigned is directed to say that reference
are being received from time to time from
Ministries/Deptts. enquiring as to what should be the
validity period of a list of selected candidates
prepared on the basis of direct recruitment or
Departmental competitive Examination
Normally, in the case of direct recruitment a list
of selected candidates is prepared to the extent of the
number of vacancies (other persons found suitable being
put on a reserve list, in case some of the persons on
the list of selected candidates do not become available
for appointment). Similarly, in the case of
Departmental competitive Examinations the list of
selected candidates has to be based on the number of
vacancies on the date of declaration of results, as the
examination is competitive and selection is based on
merit. A problem may arise when there is a fluctuation
in the vacancies after the list of selected candidates
is announced.
The matter has been carefully considered.
Normally, recruitment whether from the open market or
through a
Departmental competitive Examination should take place
only when there are no candidates available from an
earlier list of selected candidates. However, there is
a likelihood of vacancies arising in future: in case,
names of selected candidates are already available,
there should either be no further recruitment till the
available selected candidates are absorbed or the
declared vacancies for the next examination should take
into account the number of persons already in the list
of selected candidates awaiting appointment. Thus,
there would be no limit on the period of validity of
the list of selected candidates prepared to the extent
of declared vacancies, either by the method of direct
recruitment or through a Departmental Competitive
Examination.
Once a person is declared successful according to
the merit list of selected candidates, which is based
on the declared number of vacancies, the appointing
authority has the responsibility to appoint him even if
the number of the vacancies undergoes a change, after
his name has been included in the list of selected
candidates. Thus, where selected candidates are
awaiting appointment, recruitment should either be
postponed till all the selected candidates are
accommodated or alternatively intake for the next
recruitment reduced by the number of candidates already
awaiting appointment and the candidates awaiting
appointment from a fresh list from the subsequent
recruitment or examination.
Ministry of Finance, etc. are requested to bring
the above instructions to the notice of all the
appointing authorities under them for information and
guidance. Sd/-(J. K. Sarma) Director." It is clear from this notification that if selected candidates are available from the previous list, there should either be no further recruitment until those candidates are absorbed or, in the alternative, vacancies which are declared for the subsequent years should take into account the number of persons who are already in the list of selected candidates who are still awaiting appointment. The notification further shows that there should be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies. Once a person is declared successful according to the merit list of selected candidates, the appointing authority as the responsibility to appoint him, even if the number of vacancies undergoes a change after his name is included in the list of selected candidates.
We must record our dissatisfaction at the fact that the Rules of the Delhi Judicial Service have not been amended so as to bring them in conformity with the administrative instructions and notifications which have been issued by the Ministry of Home Affairs, Department of Personnel and Administrative Reforms, from time to time. The situation is virtually chaotic for which, we must clarify, the High Court of Delhi cannot be blamed. It is surprising that though 13 years have gone by since the Delhi Judicial Service was established, no attention whatsoever has been paid to a matter which concerns the future of a large number of young men and women who aspire for posts in the Judiciary. The instant case and the cases of Ajaib Singh and Ram Swarup show that the worst sufferers of this inaction are members of the Scheduled Castes and Scheduled Tribes. Sooner the Rules are amended, easier will it be for the High Court to administer and superintend the affairs of the subordinate Judiciary with the object of achieving the ideals enshrined in Articles 16 (4), 38 and 46 of the Constitution.
Though the Rules ought to be amended, that does not mean that administrative instructions can be ignored by the High Court until that is done. The Assistant Registrar says in paragraph 9 of his counter-affidavit that "administrative instructions cannot be allowed to prevail over the statutory rules." That would be correct provided that the administrative instructions are contrary to the statutory rules. In this case, Rule 28 itself says that "Appointments made to the service by competitive examination shall be subject to order regarding special representation in the service for Scheduled Castes and Scheduled Tribes issued by the Central Government from time to time." Therefore, far from their being any inconsistency between the statutory rules and the administrative instructions it is clear that the two have to be read together.
These writ petitions must therefore succeed. Our reasons for allowing the petitions may be summed up thus: In the first place..., in the process of remedying injustice which was done to the two scheduled caste candidates of 1979, no injustice can be caused to the petitioners who had qualified for the reserved seats in the examination held in 1980. Secondly, the quota of seats available for reserved candidates cannot be made to depend on the fortuitous circumstance as to how many candidates have qualified for the general seats. The reserved quota must be fixed on the basis of the total number of vacancies which are to be filled at a given point of time. Thirdly, the notification of 1982 is good authority for adjusting the petitioners against the reserved vacancies for the year 1980. The statutory rules and administrative instructions have to be read together by reason of Rule 28.
We accordingly direct that the High Court and the Delhi Administration will take expeditious steps for notifying the appointments of the petitioners, Dal Chand Anand and Prem Prakash, to the Delhi Judicial Service. For purposes of seniority the former will rank higher than the latter because that was their orders of seniority in the original merit list of 1980. Since they have not actually worked as Sub-Judges during the intervening period, they will not be entitled to any remuneration for that period. They will however rank for seniority in the Delhi Judicial Service on the footing that they were appointed when they ought to have been appointed, that is to say, when the other candidates were appointed on the basis of the result of the 1980 examination. In all other respects, including probation, their appointment will be subject to the provisions of the relevant rules and regulations.
In the result, the writ petitions are allowed to the extent indicated above. Respondents 1 and 2 will pay to the petitioners the costs of these petitions. M.L.A. Petitions allowed.