Only SC/ST Welfare Department Can De-Reserve Vacant SC/ST Quota Seats As Per Punjab Law; Appointing Authority Can't : Supreme Court

A Bench comprising Justices Indira Banerjee and J.K. Maheshwari refused to interfere with the order of the Punjab and Haryana High Court which rejected the plea of interchangeability/de-reservation. It noted -

"At this stage it cannot be lost sight that the merit list was prepared in furtherance to the advertisement of the year 2015­-2016 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."

Factual Background

The Punjab and Haryana High Court suo moto registered Public Interest Litigation with respect to inaction of Government of Punjab in filing vacancies of ETT (Education Trained Teacher) as some applicants had held out threats to commit suicide to protest such State inaction. 4500 and 2005 vacancies were notified by advertisements dated 08.11.2015 and 30.07.2016 respectively. The High Court passed an interim order to fill the vacancies. Accordingly, the Government filled posts of ETT as per merit and reservation. Due to non-availability of eligible candidates in the SC/ST category, 595 posts for the said category remained vacant.

The appellants, who had applied for the post of ETT in the category of Backward Classes and had found place on merit list, sought the indulgence of the Court to direct interchangeability of the vacant posts and permit those unfilled posts to be filled by eligible candidates of the Backward Classes category. It was claimed such interchangeability had been provided by a policy letter floated by the State of Punjab on 17.03.1954. On the basis of the said policy letter, the appellants had submitted representations to the concerned authorities. It is alleged that without considering them in the correct perspective, the Government had re-advertised the vacant posts. The High Court was informed by the State that the representations had been rejected and it had taken a decision to re-advertise the posts of the SC/ST category. It was accepted by the Court after noting the statement of the Additional Advocate General that steps are being taken to examine the issue of de-reservation. Accordingly, the High Court denied the claim of the appellants.

Contentions raised by the appellants

Senior Advocate, Mr. P.S. Patwalia appearing for the appellants referred to the above-mentioned policy letter and Section 7(2) of the Punjab Scheduled Castes and Backward Classes (Reservation in Service) Act, 2006 ("2006 Act") to contend that there was no bar on the interchangeability of the post from SC/ST category to Backward Class category. It was brought to the notice of the Court that the concerned authorities had rejected the representations on the basis of another unrelated policy and on the claim that the policy referred to by the appellants was withdrawn, when, in fact, it was restored on 20.06.1974 and has been in force ever since.

Contentions raised by the respondents

Advocate, Mr. Karan Bharihoke, appearing on behalf of the respondents argued that in terms of Section 7 of the 2006 Act, de-reservation was impermissible. It was highlighted that the representations were reconsidered by the Department of Social Justice, Empowerment and Minority and on 05.01.2021. Thereafter, the claims were rejected. He submitted that in compliance with the order of the High Court directing the Government to expeditiously fill up the vacant posts, it had initiated the fresh process of selection.

Analysis by the Supreme Court

On perusal of Section 7(2) of 2006 Act, the Court was of the view that de-reservation of reserved vacancy to be filled up by direct recruitment or promotion cannot be done by the appointing authority. But, if posts remain vacant due to non-availability of eligible candidates, it can request the Department of Welfare of Scheduled Castes and Backward Classes for de-reservation of the said unfilled vacancies. The Department, if it is expedient in public interest, after recording reasons can make such de-reservation. Even the policy letter, the Court noted, was not in contravention, but in furtherance of the 2006 Act.

The Court observed that the nature of the protest which forced the High Court to interfere was unfortunate, improper and incorrect. It was of the opinion that issuance of direction for interchangeability after 6 years of notifying the selection list for filling up the unfilled vacancies of SC/ST category would be unjustified. Moreover, it took note that departmental authorities rejecting representations based on incorrect facts would not entitle the appellants to relief claimed.

Case Name: Mandeep Kumar And Ors. v. U.T. Chandigarh And Ors.

Citation: 2022 LiveLaw (SC) 262

Case No. and Date: Civil Appeal No 1908 of 2022 | 9 Mar 2022

Corum: Justices Indira Banerjee and J.K. Maheshwari

Authored By: Justice J.K. Maheshwari

Headnotes

Section 7(2) of the Punjab Scheduled Castes and Backward Classes (Reservation in Service) Act, 2006 - 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 posts remain unfilled, the appointing authority may request to the Department of Welfare of Scheduled Castes and Backward Classes for de­reservation - on request, upon 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 department.

Section 7(2) of the Punjab Scheduled Castes and Backward Classes (Reservation in Service) Act, 2006 - the de­reservation or interchangeability may be possible by the Department of Scheduled Castes and Backward Classes but not by appointing authority - in the present case 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.

Selection list prepare in 2016 - Issuance of direction of interchangeability/de-reservation after 6 years of notifying the selection list for filling up the unfilled vacancies of SC/ST category would be wholly unjustified - the selection list would not survive after the lapse of a long time to fill up the vacancies after interchangeability.