R. Banumathi, J.— Leave granted. These appeals are preferred against the common judgment dated 13-2-2012 2012 SCC OnLine P&H 2975 whereby the High Court of Punjab and Haryana dismissed the writ petitions CWPs Nos. 20135, 20189 and 21746 of 2008, holding that the appellants cannot claim any legal right in respect of the posts which remained unfilled as the select list stood exhausted with the joining of the candidates to the extent of posts advertised.
2. Brief facts which led to filing of these appeals are as follows: the Punjab Public Service Commission issued advertisement for filling up 52 posts of Punjab Civil Services (Judicial Branch) vide advertisement dated 7-3-2007. Out of 52 posts, 27 posts were for general category; 25 posts for reserved category which included 3 posts for ex-servicemen; 2 posts for physically handicapped; 10 posts for Scheduled Castes; 3 posts for Scheduled Caste ex-servicemen; 5 posts for Backward Classes; 1 post for Backward Class ex-servicemen and 1 post for sports person. Preliminary examination was conducted on 27-5-2007. The main examination was conducted from 20-7-2007 to 22-7-2007. The viva voce was conducted from 28-11-2007 to 30-11-2007 and final result was declared on 1-12-2007. Twenty-seven candidates from general category, 10 candidates from Scheduled Castes and 5 candidates from Backward Classes were declared successful and have joined in terms of letters of appointment issued to them. Eight posts were dereserved in respect of the remaining unfilled vacant posts. As against the said dereserved posts, seven candidates from the general category i.e. candidates up to Sl. No. 34 and 1 candidate from Backward Classes were offered appointments. However, three candidates belonging to general category, namely, Sumit Garg, Vijayant Sehgal and Yogesh Chaudhary placed at Sl. Nos. 1, 5 and 32 respectively did not join the service. Resultantly, thirty-one general category candidates accepted the appointment and joined service.
3. The appellants who belong to general category have appeared in preliminary examination and subsequently in the main examination including viva voce figured in the final merit list as they stood at Sl. Nos. 37 and 36 and Parminder Singh Grewal at Sl. No. 35. Since three candidates did not join service, the appellants submitted the representation on 2-4-2008 to the High Court for issuance of appointment orders to them. The representation of the appellants was considered in the sixteenth meeting of the Administrative Committee held on 8-12-2010 and it was resolved to recommend the names of the appellants subject to approval of the Full Court. Again the matter was considered in the eighteenth meeting of the Administrative Committee held on 6-7-2011 wherein it was decided that the appellants cannot be offered appointments due to lack of vacancies. In Punjab, there was an ongoing litigation regarding selection of judicial officers (Junior Division) in 1998, 1999, 2000 and 2001 (known as Sidhu Scam). In the said litigation in CWP No. 1626 of 2003, as per the order (2010) 11 SCC 684 of the Supreme Court, twenty-two candidates were to be appointed. At that time in the Punjab Judicial Service, only six posts were available and therefore sixteen temporary posts were sanctioned by the Punjab Government on 22-7-2008 with a specific condition that those temporary posts shall be adjusted against the vacancies created due to future retirements/promotions/vacancies, etc. and these sixteen posts shall be abolished one by one as and when a vacancy is available. In the meeting held on 6-7-2011, the Administrative Committee took note of the order of this Court and observed that three resultant vacancies of the year 2007-2008 stood consumed with the joining of seventeen candidates of the litigation pertaining to Sidhu Scam case.
4. Feeling aggrieved, the appellants filed writ petitions before the High Court contending that three vacancies which remained unfilled due to non-joining of three candidates should have been offered to them as they were next in the order of merit. The High Court dismissed the writ petitions holding that the appellants have no right to be appointed against the vacancies falling vacant due to non-joining of three candidates of general category. It was further held that as against 27 vacancies available for general category candidates, 31 general category candidates have already joined and are actually working i.e. candidates much more than the vacancies advertised have been permitted to join and thus the select list of 2007-2008 stands exhausted. Aggrieved thereof, the appellants have preferred these appeals. Be it noted that Parminder Singh Grewal whose writ petition also came to be dismissed by the common judgment has not preferred any appeal.
5. The learned counsel for the appellants Ms Kamini Jaiswal submitted that the appellants had a right to be appointed in lieu of three vacancies falling vacant on account of non-joining of the candidates. To substantiate the contention, the learned counsel relied on Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat 1994 Supp (2) SCC 591, (1994) 28 ATC 78, (1994) 2 SLR 710. It was contended that the High Court erred by considering the issue of dereservation of post even though the same was not raised before it. It was further urged that once the High Court concluded its view upon dereservation, the High Court should have directed cancellation of other candidates on their said dereserved post as a necessary corollary of holding dereservation improper.
6. Per contra, the learned counsel for the respondents contended that because the names of the appellants were in the select list, the appellants have no indefeasible right of appointment. Drawing our attention to Annexure P-10, the learned counsel submitted that the said three resultant vacancies of the year 2007-2008 were consumed with the joining of seventeen candidates relating to “Sidhu Scam case” and the appellants have no right to claim appointment.
7. We have carefully considered the rival contentions and perused the impugned judgment 2012 SCC OnLine P&H 2975 and material on record.
8. As against 27 posts of general category advertised, all 27 candidates joined. Out of dereserved 8 posts, 1 post was filled by a backward class candidate and the remaining 7 posts by general category candidates. Admittedly, Sumit Garg, Vijayant Sehgal and Yogesh Chaudhary placed at Sl. Nos. 1, 5 and 32 of the merit list to whom appointment letters were issued, have not joined. Resultantly, as against 27 posts advertised for general category, 31 general category candidates have joined and are working.
9. There is no denying that the appellants were placed in the select list at Sl. Nos. 35, 36 and 37. In the sixteenth meeting of the Administrative Committee held on 8-12-2010, considering the representation of the appellants it was “resolved to recommend, subject to approval of the Full Court, to the Government of Punjab for their appointment as Civil Judges subject to availability of vacancies”. But in the eighteenth meeting of the Administrative Committee held on 6-7-2011, the Committee took note of the direction issued by the Supreme Court to appoint twenty-two candidates selected in the years 1998, 1999, 2000 and 2001 who were not earlier appointed due to Sidhu Scam. At that time only six vacancies were available. To accommodate those twenty-two candidates, the Government of Punjab had sanctioned sixteen temporary posts, with the stipulation that the post will be abolished one by one as and when a vacancy becomes available. Relevant minutes of the eighteenth meeting of the Administrative Committee dated 6-7-2011 reads as under:
“The writ petitions filed by 22 candidates selected in the years 1998, 1999, 2000 and 2001 were allowed on 27-5-2008 2008 SCC OnLine P&H 776, ILR (2008) 2 P&H 188 and were ordered to be appointed as Civil Judges in Punjab. At that time only 6 vacancies were available. To give effect to the said judgment of this Court, 16 temporary posts were sanctioned on 22-7-2008 by the Punjab Government with the stipulation that the posts will be abolished one by one as and when a vacancy becomes available. As per the orders of the Hon'ble Supreme Court in that matter, only 17 candidates were issued appointment letters, 3 resultant vacancies of the year 2007-2008 stood consumed with the joining of 17 candidates.”
10. It is fairly well settled that merely because the name of a candidate finds place in the select list, it would not give him indefeasible right to get an appointment as well. The name of a candidate may appear in the merit list but he has no indefeasible right to an appointment (vide Food Corporation of India v. Bhanu Lodh (2005) 3 SCC 618, All India SC & ST Employees' Assn. v. A. Arthur Jeen (2001) 6 SCC 380 and UPSC v. Gaurav Dwivedi (1999) 5 SCC 180.
11. This Court again in State of Orissa v. Rajkishore Nanda (2010) 6 SCC 777, held as under:
“14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.
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16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required.”
12. In Manoj Manu v. Union of India (2013) 12 SCC 171, it was held that merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. It is always open to the Government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Once the decision is found to be based on some valid reason, the Court would not issue any mandamus to the Government to fill up the vacancies. As noticed earlier, because twenty-two other candidates were declared successful by the Supreme Court pertaining to the selection of the years 1998, 1999, 2000 and 2001 as Civil Judges (Junior Division), they were to be accommodated, as rightly resolved by the Administrative Committee in the meeting dated 6-7-2011. The three resultant vacancies of the year 2007-2008 stood consumed with the joining of the said seventeen candidates and the same could not be filled up from the select list of that year. The decision of the Administrative Committee observing that the three resultant vacancies stood consumed is based on factual situation arising there and cannot be said to be arbitrary.
13. As noticed earlier, as against twenty-seven posts of general category advertised for the year 2007-2008, thirty-one general category candidates have joined and are working. In Rakhi Ray v. High Court of Delhi (2010) 2 SCC 637, observing that the vacancies cannot be filled up over and above the number of vacancies advertised, recruitment of the candidates in excess of the notified vacancies would amount to denial of equal opportunity to eligible candidates, this Court held as under:
“12. In view of above, the law can be summarised to the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, unexecutable and unenforceable in law. In case the vacancies notified stand filled up, the process of selection comes to an end. Waiting list, etc. cannot be used as a reservoir to fill up the vacancy which comes into existence after the issuance of notification/advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more.
13. In the instant case, as 13 vacancies of the general category had been advertised and filled up, the selection process so far as the general category candidates is concerned, stood exhausted and the unexhausted select list is meant only to be consigned to record room.”
14. On behalf of the appellants, it was contended that once posts were dereserved and appointments were made as against the said dereserved posts and the dereservation was not challenged, the High Court erred in going into the question of dereservation. As noticed above, out of 52 posts of Punjab Civil Service (Judicial Branch) advertised, 8 posts of reserved category were not filled up and Public Service Commission dereserved the same. Bifurcation of the said dereserved posts is as under:
1. Ex-servicemen, Punjab — 3 posts
2. Physically handicapped, Punjab — 2 posts
3. Sports person, Punjab — 1 post
4. Scheduled Caste, ex-servicemen, Punjab — 1 post
5. Ex-servicemen, Backward Class — 1 post
Out of the said eight dereserved posts, one post was filled up by a Backward Class candidate and the remaining seven posts by general category candidates. As observed by the High Court, so far as two posts of physically handicapped, three posts of ex-servicemen and one post of sports person is concerned, there was no statutory prohibition in respect of dereservation. However, in respect of dereservation of one post of Scheduled Caste category, Section 7 of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 prohibits dereservation and stipulates the manner in which such dereservation could be done. Section 7 of the Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 as extracted in the impugned judgment reads as under:
“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 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 sub-section (1), if, in the public interest, it is deemed necessary to fill up any vacancy referred to in that sub-section, 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, dereserve the vacancy, subject to the condition that the vacancy so dereserved, shall be carried forward against a subsequent unreserved vacancy.”
15. By perusal of Section 7, it appears that as a general rule there is a bar on dereservation of the post reserved for Scheduled Caste candidates. However, sub-section (2) provides an exception to this general rule by laying down that in the public interest the authorities may by passing an order in writing dereserve the seats reserved for candidates belonging to Scheduled Castes category. After insertion of clause (4-B) in Article 16 of the Constitution vide the Eighty-first (Amendment) Act, 2000, dereservation could not have been done. Under Article 16(4-B) of the Constitution of India, unfilled vacancies reserved for the Scheduled Castes or Scheduled Tribes candidates are to be carried forward independent of ceiling of reservation of fifty per cent. The seats reserved for Scheduled Castes and Scheduled Tribes categories are to be filled only by specified category. Therefore, the High Court was right in finding fault with the dereservation of the seven posts which were filled by the candidates belonging to general category and we do not find any reason warranting interference.
16. The learned counsel for the appellants contended that when the other candidates were appointed in the post against dereserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. In State of U.P. v. Rajkumar Sharma (2006) 3 SCC 330 it was held as under:
“15. Even if in some cases appointments have been made by mistake or wrongly, that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh Prabha v. State of U.P. (1996) 7 SCC 426; Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35; State of Haryana v. Ram Kumar Mann (1997) 3 SCC 321; Faridabad CT Scan Centre v. DG, Health Services (1997) 7 SCC 752; Jalandhar Improvement Trust v. Sampuran Singh (1999) 3 SCC 494; State of Punjab v. Rajeev Sarwal (1999) 9 SCC 240; Yogesh Kumar v. Govt. (NCT of Delhi) (2003) 3 SCC 548; Union of India v. International Trading Co. (2003) 5 SCC 437 and Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit v. Indore Development Authority (2006) 2 SCC 604.)”
Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the appellants to claim equality.
17. The learned counsel for the appellants submitted that the appellants have been pursuing the matter for about eight years and even today there are vacancies in Punjab Judicial Service and thus prayed that direction be issued to the respondents to consider the case of the appellants as against the existing vacancies. This contention does not merit acceptance. Appointment to an additional post or to existing vacancies would deprive candidates who were not eligible for appointment to the post on the date of submission of the applications mentioned in the advertisement but became eligible for appointment thereafter. After referring to Rakhi Ray (2010) 2 SCC 637, Rajkishore Nanda (2010) 6 SCC 777 and other decisions, the High Court rightly held that the candidates much more than the vacancies advertised have already been permitted to join and thus the appellants cannot claim any legal right in respect of the posts of reserved category remaining unfilled. The impugned judgment 2012 SCC OnLine P&H 2975 does not suffer from any infirmity warranting interference in exercise of our jurisdiction under Article 136 of the Constitution of India.
18. The appeals are dismissed. In the facts and circumstances of the case, we make no order as to costs.