REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 11365 OF 2018

(Arising from S.L.P. (C) No. 13676 of 2017)

GAGANDEEP SINGH … APPELLANT (S)

VERSUS

THE STATE OF PUNJAB & ORS. … RESPONDENT (S)

J U D G M E N T

KURIAN, J.

Leave granted.

2.Appellant was No.3 in the select list for appointment to the

post of District Programme Officer. He belongs to the reserved

category of Balmiki/Majbhi Sikh. The selection commenced with

the advertisement by the Punjab Public Service Commission on

21.12.2010. The written examination was conducted in the year

2012. One Gurpreet Singh was appointed against the reserved

vacancy (Balmiki/Majbhi Sikh). After one year he resigned from

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the post on 25.04.2014. According to the appellant the vacancy

thus created should be filled up by the next available person from

the same community. It is also the case of the appellant that

though the appellant is No. 3 in the select list, No.2 (Manjinder

Singh) not being interested and not having pursued the litigation,

the appellant should be appointed. The Department rejected the

claim of the appellant stating that once an appointment is made,

the reserved point was consumed and hence the appellant cannot

be considered. Hence, he filed a writ petition before the High

Court. The learned Single Judge dismissed the writ petition

holding that the appellant did not have a legal right to claim

appointment and that the vacancy had to be re-advertised.

3.In the intra court appeal, as per the impugned judgment, the

Division Bench took note of the submission that the process for

subsequent selection had been initiated and thus dismissed the

appeal.

4.It is the contention of the appellant that as per the

guidelines issued by the welfare Department dated 08.04.1980

read with subsequent instruction dated 10.01.1996, the point

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filled up by a candidate belonging to the reserved category and

subsequently vacated on account of resignation or otherwise

cannot be considered to be consumed. It is to be filled up out of

the candidates available in the select list. To quote the relevant

para from the instructions dated 10.01.1996:

“According to these instructions, the point filled up by

a candidate belonging to reserved category and

subsequently vacated on account of resignation or

otherwise by one of the incumbents is not considered

to be consumed. This point is available for the

reserved categories and is required to be filled up out

of the candidates available as a result of selection in

order of their seniority.”

It is also stated in the instruction that “… there is no discretion

with the Administrative Department in this regard”. However, the

contention of the State is that the merit list having outlived its life

on account of the appointment, nobody can claim appointment

from such a list. We are afraid this contention cannot be

appreciated. No doubt, no candidate has a vested right for

appointment. But at the same time, the appointing authority

cannot frustrate the whole instruction behind and purpose of

preparation of a select list. If a vacancy had arisen before the

expiry of the list, going by the instruction, the next available

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candidate in the select list had a legitimate expectation and claim

for being considered for appointment. The vacancy had arisen in

2014 before the commencement of fresh selection in 2016. Even

for the subsequent selection, the post reserved for Balmiki/Majbhi

Sikh is not notified. The reservation is for other Scheduled

Castes. Learned counsel for the State has stated that vacancy of

Balmiki/Majbhi Sikh has not been filled up and it is still available.

Therefore, the slot reserved for Balmiki/Majbhi Sikh is still

available and as per the instruction which we have extracted

above, the same has to be filled up from the merit list. In the

additional affidavit filed by the State it is pointed out that

appellant was not the next person for consideration. It is one

Maninder Singh (No.2) and he had also given a representation.

Since the slot is available, the State has to fill up that vacancy

from the reserved community from the merit list. In case No. 2 is

not interested, naturally it will go to the appellant.

5.The appeal is disposed of with the direction to the

respondents to make appointment in respect of Valmiki/Majbhi

Sikh from the merit list published on 20.06.2012. Needful be done

within a period of two months. In order to avoid any dispute on

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seniority, it is made clear that the incumbent concerned will get

seniority only from the date of appointment. No costs.

……………..……………………J.

(KURIAN JOSEPH)

……………..……………………J.

(S. ABDUL NAZEER)

NEW DELHI;

NOVEMBER 27, 2018.

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