PREM PRAKASH v. UNION OF INDIA AND ORS.

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 H writ of mandamus directing the respondents to appoint them against

PREM PRAKASH v. UMION (Chanarachud, C.:J.) 567

the vacancies reserved for members of Scheduled Castes and A 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. B the Delhi High Court are respondents l, 2 and 3 to these petitions.

On September 26, 1979, the Registrar of the Delhi High Court published a newspaper advertisement that tr.e Delhi High Court will hold an examination for recruitment of officers to the Delhi Judicial Service on January I I, 12 and 13, 1980 in the time scale pay of c R~. 650-1200. The advertisement stated that the total number of

,. vacancies was 16, out of which 2 were reserved for Scheduled Castes aud 1 for Scheduled Tribes. In addition, according to the advertise- ment, there were 2 carry-forward vacancies for members of Scheduled Tribes. In case of n·on-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 F 01 any vacancy that may occur within a period of one year of the preparation of the list." "Rule 28-Appoinments 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 G • from time to time."

The Brochure on 'Reservation for Scheduled Castes and Scheduled Tribes in Services', (5th ed., 1978) issued by the Govern- • ment of India, Dept. of Personnel and Administrative Reforms Ministry of Home Affairs contains orders and instructions issued b; H

568 SUPREME COURt l\EPORts (I 985] I s.c.I\.

A 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 folJows : .. "2.J Subject to Exemptions and Exclusions referred B in Chapter J, the folJowing 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 :- c SC ST

(a) By open competition (i.e., 15% through the UPSC or by • means of open competi- tive test held by any D other authority)". ' "4.2 ThC 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 nor- • E mally 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 fo1 utilisation even where the total number of such reserved vacancies exceed 50% of the vacancies filled F 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 bas not reached the prescribed .. percentage of reservation for SC/ST respectively, in the grade, as a whole".

"9.2 Advertisement of reserved vacancies for pos(s • G filled by direct recruitment through examinat10n :-

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

PREM PRRKASll v. UNION (Chandrachud, C.J.) 569

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.'' B

"11.1 Carry ol'er of reservations:- If a sufficient number of reserved communities candi- dates fit for appointments against reserved vacancies are not forthcoming, such vacancies can be dereserved after c 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 of......................................................... ) D where there ·will be no 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 So% when the ceiling of 50% is applied, shall be carried forward to the subsequent year of recruitment, subjert, 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 repre- • sentation 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 respecti- G • vely, in the grade, as a whole" .

''Note (2) :-Any recruitment of SC/ST candid?tes will fast be counted against the additional quota brought for- • ward 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 H

510 SUPREME COURT REPORTS (1985) 1 S.C.R.

A and the comparatively later carried forward vacancies should be further carried forward".

'the petitioners appeared for the examination and passed it, though by relaxatiou of the minimum standard prcscri bed for passing the examination. They were then asked to appear at the • B viFa 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 II 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 peti- c tioner in Writ Petition No. 4480 of 1980', was 11th in that list. They we" 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 exclus10n and non-appointment. D 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 E 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 of the initial recruitment to the Service, which was not by competi- tive examination. Representations were, however, made to the •. Ministry of Law and Justice as a result of which, the Delhi Adminis- F tration was instructed administratively to take suitable steps if necessary by amendment of the recruitment Rules, so as to pro~ide 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 G that !5 per cent of the vacancies filled in the Delhi Judicial Service • should be reserved for Scheduled Castes and 7i per cent for Sche· duled 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

PREM PRAKASH v. UNION (Chandrachud, C.J.) 571

reservations for backward classes and the actual performance in A terms of social awareness.

• The counter-affidavit mys that the 6th competitive examination at which the petitioners appeared was held in 1980. J 6 Vacancies were notified, out of which 11 were for open candidates, 2 ·for Scheduled Castes and 3 for Scheduled Tribes. Two out of the B ·~ three vacancies re<erved for Scheduled Tribes were interchangeable in the sense that, if candidates from Scheduled Tribes were not available, 1hose vacancies could be added to the quota reserved for S~heduled Castes.

The counter-affidavit of the High Court contains a candid c admission in paragraph 17 that when, in 1980 and !98!, ihe High · • Court examined the question of reservation of vacancies for Sche- duled Castes and Scheduled Tribes right from the stage of initial constitution of the Service in 1971, it found that "there was appa- rently a violation of statutory Rules and the vacancies had been D, 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 examina- tion but who, on account of a mistaken calculation, were not appointed to the reserved seats. We are happy to find that consis- E tency in adhering to errors is not the hobgoblin of our High Courts.

The factual position which emerges out of the averments in the Writ Petiti ms and the counter affidavit filed on behalf of the High Court is that though 16 vacancies were advertised, only ll vacancies could possibly be filled up. The reason is that only l l F 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 accommo- • dating the petitioners because. they are 10th and I Ith in the merit G 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 wronll1y denied appointmen\s. The¥ had H

572 SUPREME COURT REPORTS [1985) I S.C.R.

A passed the examination and re,erved 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 : . B "We are informed that the Delhi High Court has decided in a fuJI Court meeting to recommend the names of the petitioner Ajaib Singh and another candidate Ram - • Swamp, for appointment to the post for which they had applied, namely, the post of th' Sub-Judge. The duration c 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 Swamp 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 ercor 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 wh'ch arose for the administrative comidaation of the High Court was whether the injustice done to the two candidates shcmld 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 candi- • dates by correcting an error for which they were not to blame. On onr part, we considered it unfair that they should be denied appoint- G ments 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 c;;ourt 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. ·•

If Jt is ironical that the rectification of injustice done to some

PRIM PRAKASH v. UNION (Chandrachud, C.J.) 573

two persons should result in injustice to two others. But, that is A 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 Couri 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 Swamp who were wrongly excluded from the reserved appointments of 1979 had to be accom- B modated 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 m"it list of 1980. When, in furtherance of the decis;on 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 c as Sub-Judges despite the expiry of the duration of that pane1, 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, ;r not at all costs, at least within the framework of the D Rules and the administrative instructions governing this matter. · Justice to one groJp at the expense of injustice to another is per- petuation 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 E were excluded from foe 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, ~fter accommo- dating Ajaib Singh and Ram Swamp in the 1980 selection, reserved vac•ncies 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 Rcgi>trar. He says in paragraph 21 of F • his counter-affidavit :

"It is submitted that in view of the fact that only I 1 candidates qualified in the examination of which 7 were , general candidates. Therefore, in accordance with the advice • G contained in the D. 0. 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 I Scheduled Caste candidate and in addition 2 more Scheduled Caste candi- \lates as a~ainst 2 carried forward exclµingeable vacancies

574 SUPREME COURT REPORTS (1985] I s.c.R. A 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 recom- mended for appointment since he was 3rd amongst the four Sche- B duled Caste candidates but that the, said recommendation was made under an erroneous belief 1hat 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 Regi'. c strar is that no vacancy was available at all in which he could be appointed since, he was 4th in the list of Scheduled Caste candi- dates. • The error from which the calculation of the High Court suffers i' that the number of vacancies available for the Scheduled D Caste candidates was fixed by it according to the number of candi- dates who qualified for the general seats. The counter-affidavii 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 administrdtive 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, I I were for general candidates and 5 .for reserved categories. It may be assumed that the Administration is not hound to fill all the vacancies which are advertised and indeed, if the number of candidates who qualify in the competitive exami- nation is le" than the number of vacancies which are advertised, it is obvious that the vacancies wh;ch can be filled will be less than the vacancies which are advertised. But the availability of vacancies for the reserved categories cannot be inade to dep;;!nd upon the • accidental circumstance of how many candidates have qualified for general scats. Tn 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 undesi- rable 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 ff to bi; filled at any p~rticular point of time. According to paragraph

f>REM PRAKASH v. UNION (Chandrachud, C.J.) 575

2.1 of the Brochure, 15% of the total vacancies aro required to be A reserved for the Scheduled Caste candidates and 7t % for the Scheduled Tribe candidates. Therefore, the High Cvurt could not • have fixed the number of vacancies available to the reserved candi- dates on the basis that only 7 persons had qualified for the general seats. If a decision was taken to fill JO or 11 posts only, the number of reserved vacancies should have been fixed upon that B • 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. c , 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 !he following ·effect : D "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. E enquiring as to what should be the validity period of a list of selected candidates prepared on tlie basis of direct recruit- ment or Departmental competitive Examinati;n

Normally, in the case of direct recruitment a list of selected candidates is prnpared to ·the extemt of the number II of vacancies (other persons found suitable being put on· a • reserve list, in case some of tho persons on the list 'of seiec- ted candidates do not become available for appointment). Similarly, in the case of Departmental competitive Examina- tions the list of selected candidates has to be based ou the ., number of vacancies on the date of deol11ration of results, as the examination is competitive and selection is based on G merit. A problem may arise when there is a fluctuation in the vacancies after the list of selected candidates is anno- • unced .

The matter has been carefully considered. Normally, recruitment whether from the open market or through a H

.. .. $76 SUPREME COURT REPORTS [198sj i s.c.a. A Departmental competitive Examination should take place only when there are no candidates available from an earlier list of selected candidates. However, there 1s 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 examinati~n B 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 c 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 0 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 eithe1 be postponed till all the selected candidates are accommodated or alternatively intake for the next E recruitment reduced by the number of candidates already awaiting appointment and the candidates awaiting appoint- ment from a fresh list froiµ the subsequent recruitment or examination.

Ministry of Finance, etc. are requested to bring the above instructions to the notice of all the appointing autho- F rities 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 noti- fication further shows that there should be no limit on the period H of validity of the list of selected candidates prepared to the extent

PREM PRAKASH v. UNION (Chandrachud, C.J.) 577

of declared vacancies. Once a person is declared successful accord· A ing to the merit list of selected candidates, the appointing authority as the responsibility to appoint him, even if the number of vacan- • cies 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 B • of the Delhi Judicial Service have not been amended so as to bring them in conformity with the administrative instructions and notifica· tions which have been issued by the Mini•try of Home Affairs, Department of Personnel and Administrative Reforms, from time to time. The situation is virtually chaotic for which, we must c 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 Swamp show that the worst D 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. E 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 paragrnph 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 F 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 inconsis- tency between the statutory rules and the administrative instructions • it is clear that the two have to be read together. G 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 exami- H

SUPl\FME CoURT REPORTS (t9s5j i s.c.il. nation 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 B adjusting the petitioners against the reserved vacancies for the year 19 80. 1 he 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 appoint- c ments 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 D 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 provision.s of the relevant rules and regulations. E In the result, the writ petitions are allowed to the extent indicated above. Respondents 1 and 2 will pay to the petition~rs the costs of these petitions.

M.L.A. Petitions allowed. \•