HEMANT GUPTA, J. (ORAL)

This order shall dispose of afore-mentioned three writ petitions raising identical questions of law and facts claiming appointment to the post of Punjab Civil Services (Judicial Branch) in pursuance of advertisement dated 07.03.2007 (Annexure P-1).

The petitioners i.e Kulwinder Pal Singh in CWP No. 20135 of 2008; Dinesh Kumar in CWP No. 20189 of 2008 & Parminder Singh Grewal in CWP No. 21746 of 2008 are at Sr. Nos. 37, 36 & 35 respectively in the merit list of the general category candidates who appeared for the test.

Punjab Public Service Commission advertised 52 posts of Punjab Civil Services (Judicial Branch) vide advertisement dated 07.03.2007 (Annexure P-1). Out of 52 posts, 27 posts were meant for General category; 03 posts for Ex-servicemen, Punjab; 02 posts for Physically Handicapped, Punjab; 10 posts for Scheduled Castes, Punjab; 03 posts for Scheduled Castes, Ex-servicemen, Punjab; 05 posts for Backward Classes, Punjab; 01 post for Backward Classes, Ex-servicemen, Punjab and 01 post for Sports Person, Punjab. In terms of the conditions of the advertisement, the preliminary examination was to be conducted on 15.05.2007; the result of the mains examination was to be declared on 30.08.2007 and the viva-voce was to be held from 1st to 15th October, 2007. The final result was to be declared on 01.11.2007 The candidates, who were appearing in the final year/semester were also eligible to apply subject to the condition that they will possess the degree of Bachelor of Laws before the commencement of viva voice i.e from 1 October, 2007. There is no condition in the advertisement (Annexure P-1) that any post advertised for any of the reserved category is liable to be converted for the reason that earlier attempts to fill up such reserved category posts have remained unsuccessful. There is also no condition that the posts advertised for reserved categories can be converted and filled up from amongst the general category candidates or that the number of posts advertised are subject to variation.

The preliminary examination was conducted on 27.05.2007 The main examination was conducted from 20 to 22nd July, 2007. The viva voce was conducted from 28 to 30 November, 2007 and the final result was declared on 01.12.2007 As mentioned above, the names of the petitioners appeared at Sr. Nos. 35, 36 & 37 in the merit list of General category candidates. Three General category candidates i.e Sumit Garg appearing at Sr. No. 1; Vijayant Sehgal appearing at Sr. No. 5 and Yogesh Chaudhary appearing at Sr. No. 32 did not join the service within the time granted. It has also come on record that 27 candidates from General category, 10 candidates from Scheduled Castes, Punjab and 05 candidates from Backward Class, Punjab have joined in terms of letters of appointment issued. Eight posts were de-reserved in respect of the remaining unfilled vacant posts. Seven candidates from the General category i.e candidates upto Sr. No. 34 and 01 candidate from Backward Classes were offered appointments.

The grievance of the petitioners is that since 03 candidates i.e Sumit Garg appearing at Sr. No. 1; Vijayant Sehgal appearing at Sr. No. 5 and Yogesh Chaudhary appearing at Sr. No. 32 have not joined the service, therefore, the respondents are bound to offer appointment to them, who are next in order of merit.

Mr. Malik, learned Senior Advocate appearing on behalf of the petitioners have relied upon number of judgments i.e Raghbir Chand Sharma v. The State of Punjab 1992 (1) RSJ 194 (SB - Punjab); Gopi Chand v. State of Haryana 1996 (3) SCT 393 (DB-Punjab); Vinay Singh v. State of Haryana 1993 (1) SLR 166 (SB-Punjab); Rohtas Singh Kharub v. State of Haryana 1989 (6) SLR 45 (SB-Punjab); Gujarat State Dy. Executive Engineers' Association v. State of Gujarat 1994 (2) SLR 710 (Supreme Court) and Sonika Rani @ Sonia v. State Of Haryana 2005 (4) SLR 338 (DB-Punjab), wherein it has been held that if a candidate declines the offer of appointment and the post remains vacant, the same can be filled from the approved list.

On the other hand, learned counsel for respondent Nos. 1 & 2 - State has relied upon a Division Bench judgment of this Court rendered in LPA No. 1903 of 2011 titled “Abhishek Goyal v. State of Haryana” decided on 09.01.2012, wherein the claim of the petitioners for filling up the vacant posts of Haryana Civil Services (Judicial Branch) was negated. It is argued that for the reasons recorded therein, there is no merit in the present petitions.

We have heard learned counsel for the parties at some length, but do not find any merit in the present writ petitions. Suffice it to state that 27 General category posts were advertised and as against 27 advertised posts, 31 General category candidates are, in fact, holding posts.

We do not find any merit in the argument that as 07 posts were de-reserved and at one stage intended to be filled up from amongst the General category candidates, therefore, the vacant 03 vacant posts are bound to be filled up from the candidates lower in merit in the General Category. It is pertinent to mention that in the advertisement (Annexure P-1), there is no condition that any post for reserved category can be converted and filled up from amongst the General category candidates. The Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 deals with de-reservation of the the posts. Section 7 of the said Act contemplates that there shall be no de-reservation of any reserved vacancy by any appointing authority in any establishment, which is to be filled up by direct recruitment or by promotion. Section 7 reads as under:

“7. (1) There shall be no de-reservation 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 subsection, the appointing authority shall refer the vacancy to the Department of Welfare of Scheduled Castes and Backward Classes for de-reservation. 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 de-reserved, shall be carried forward against a subsequent unreserved vacancy.”

In view of the above provision, the vacancies meant for Scheduled Castes and Backward Classes could not have been de-reserved. There is no statutory provision or prohibition in respect of de-reservation of 02 posts of Physically Handicapped, Punjab; 03 posts of Ex-servicemen and 01 post of Sports person. Since only 27 General Category posts were advertised and stand filled up, the Petitioners cannot claim any right to seek appointment against the additional posts. Still further, in terms of the said Act, the vacancies so de-reserved are to be carried forward for future recruitment and, in fact, have been included in the subsequent selection process initiated in the year 2010. Therefore, three vacant de-reserved posts cannot be filled up from amongst the petitioners.

The judgment in Raghbir Chand Sharma's case relied upon by the learned counsel for the petitioner, stands set aside by the Hon'ble Supreme Court in State of Punjab v. Raghbir Chand Sharma(2002) 1 SCC 113. The Single Bench judgments of this Court, referred to by the learned counsel for the petitioners, are much prior to the later Supreme Court judgments, wherein it has been held that the waiting list cannot be used as a perennial source of appointment. In fact, the ratio of the judgments, relied upon by the petitioners, was stated by the Hon'ble Supreme Court in Virender S. Hooda v. State of Haryana(1999) 3 SCC 696 and Prem Singh v. Haryana State Electricity Board(1996) 4 SCC 319. The said judgments have been considered and distinguished in the judgments referred to hereinafter.

The judgment in Gujarat State Dy. Executive Engineers' Association case (supra) was considered by the Hon'ble Supreme Court in a judgment reported as Surinder Singh v. State of Punjab(1997) 8 SCC 488, wherein it has been held that waiting list cannot be used as a perennial source of recruitment to fill up the vacancies not advertised. It has been observed as under:-

“15. Prem Singh case (supra) was decided on the facts of that case and those facts do not hold good in the present case. In the case of Gujarat State Dy. Executive Engineers' Assn. Case (supra), this Court has explained the scope and intent of a waiting list and how it is to operate in service jurisprudence. It cannot be used as a perennial source of recruitment filling up the vacancies not advertised. The Court also did not approve the view of the High Court that since vacancies had not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed. Candidates in the waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative.

16. It is in no uncertain words that this Court has held that it would be an improper exercise of power to make appointments over and above those advertised. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It should be clearly spelled out as to under what policy such a decision has been taken. Exercise of such power has to be tested on the touchstone of reasonableness. Before any advertisement is issued, it would, therefore, be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It is not as a matter of course that the authority can fill up more posts than advertised.”

The said principle was followed in a later judgment reported as Rakhi Ray v. High Court of Delhi(2010) 2 SCC 637, which deals with appointment of Superior Judicial Services, wherein the Hon'ble Supreme Court held that any appointment made beyond the number of vacancies advertised is without jurisdiction and violative of Articles 14 and 16(1) of the Constitution of India and, thus, a nullity, inexecutable and unenforceable in law. It is held that the waiting list etc. cannot be used as a reservoir to fill up the vacancy which comes into existence after the issuance of notification/advertisement. It observed 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, inexecutable 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. (emphasis supplied)”

In State of Orissa v. Rajkishore Nanda(2010) 6 SCC 777, again the Hon'ble Supreme Court held that the vacancies cannot be filled up over & 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”. It was held to the following effect:-

“11. 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 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 and such a deviation is permissible only after adopting policy decision based on some rational”, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide State of Bihar v. Secretariat Asstt. Successful Examinees Union1986 (1994) 1 SCC 126, Prem Singh v. Haryana SEB case (supra), Ashok Kumar v. Banking Service Recruitment Board(1996) 1 SCC 283, Surinder Singh v. State of Punjab(1997) 8 SCC 488 and Rakhi Ray v. High Court of Delhi case (supra).”

Recently, the Hon'ble Supreme Court in “Anup Das v. State of Assam”, decided on 27.01.2012, again has held that more than advertised posts cannot be filled up. It has been held to the following effect:-

“10. ….It is well-established that an authority cannot make any selection/appointment beyond the number of posts advertised, even if there were a larger number of posts available than those advertised. The principle behind the said decision is that if that was allowed to be done, such action would be entirely arbitrary and violative of Articles 14 and 16 of the Constitution, since other candidates who had chosen not to apply for the vacant posts which were being sought to be filled, could have also applied if they had known that the other vacancies would also be under consideration for being filled up. …

xxx xxx xxx

11. In a recent decision rendered by this Court in State of U.P v. Raj Kumar Sharma [(2006) 3 SCC 330], this Court once again had to consider the question of filling up of vacancies over and above the number of vacancies advertised. Referring to the various decisions rendered on this issue, this Court held that filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution and that selectees could not claim appointments as a matter of right. It was reiterated that mere inclusion of candidates in the Select List does not confer any right to be selected, even if some of the vacancies remained unfilled. This Court went on to observe further that even if in some cases appointments had been made by mistake or wrongly, that did not confer any right of appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had committed a mistake, it cannot be forced to perpetuate the said mistake.”

While considering the judgment in Prem Singh's case (supra), the Hon'ble Supreme Court observed as under:

“12. …The facts of that case are different from the facts of the instant case, in that no extra-ordinary and/or exceptional circumstances exist in the present case requiring the filling up of the vacant seats available after filling up the 160 seats advertised. The decision in Prem Singh's case (supra) has to be read in such a context and cannot be said to be the rule, but rather the exception.”

In the present case, the petitioners are at Sr. No. 35, 36 & 37 in the merit list. As against 27 vacancies advertised for General Category, 31 General Category candidates are actually working. Therefore, the candidates much more than the vacancies advertised have already been permitted to join. The select list stands exhausted with the joining of the candidates with the extent of posts advertised. Therefore, the petitioners cannot claim any legal right in respect of the posts of reserved category remained unfilled.

In view of the above, all the three writ petitions are without merit. The same are accordingly dismissed.