Mukesh Kumar Maroria v. High Court of Delhi and Anr

2009. In the final result declared on June, 2010, he was placed at Sr. No.2 in the order of merit in the Scheduled Caste category. As the candidate placed at Sr. No.l joined the Delhi Higher Judicial Service and only one vacancy for Scheduled Caste was advertised, appointment letter was not issued to the petitioner. The petitioner being aggrieved as he perceived and believed that there were vacant reserved posts for Scheduled W.P.(C) 93/2011 Page 1 of[8] 2015:DHC:10926-DB Castes, filed a writ petition before the Supreme Court, which was withdrawn with liberty to file a writ petition in the High Court. Thereafter, the present writ petition has been filed.

2. The primary ground raised in the writ petition is that in the immediately preceding examination for direct recruitment to the Delhi Higher Judicial Service conducted in 2007, the number of vacant posts reserved for Scheduled Caste category as advertised was 'three'. However, only one Scheduled Caste candidate was selected and appointed and, therefore, two vacancies reserved for Scheduled Caste category candidates, were carried forward. The said vacancies would not have been reduced or de-reserved. Thus, the number of reserved Scheduled Caste posts as advertised in 2009, i.e. one, is ^ incorrect and a mistake.

3. The position, which has emerged from the counter affidavit is, however, somewhat different, (a) The High Court was maintaining 40 Point Roster System for reservation of Scheduled Castes and Scheduled Tribes category candidates as per the notification dated 22"^ April, 1970 issued by the GovernmentofIndia; (b) This 40 Point Roster Systemcontinued interms ofthe resolution dated 20^*^ January, 1996 passed by the Full Court, even post the Government of India OM W.P.(C) 93/2011 Page[2] of 8 No.36012/22/1993-Estt. (SCT) dated 22"^ October, 1993 in the light of extension of benefit of reservations provided to Other Backward Classes candidates; (c) The Delhi High Court shifted to 200 Point Roster System pursuant to the decision taken by the ChiefJustice on 19'*^ March, 2008. The said decision to shift to 200 Point Roster System was taken in terms of the directions issued by the Constitution Bench of the Supreme Court in R.K. Sabharwal versus State of Punjab (1995) 2 SCC 745 and in J.C. Mallick versus Ministry of Railways, inter alia, holding that reservation ofjobs to the reserved category would apply to posts and not to vacancies; (d) This position and mandate was clarified by the Government of India, Department of Personnel and Training vide OM No.36012/2/96-Estt. (Res) dated 2"^^ July, W 1997 declaring that vacancy based rosters could continue only till such time when the representation of the reserved category persons in a cadre, reaches the prescribed percentage of reservations. Thereafter, the rosters cannot operate on vacancies, but would be post based. The OM dated 2^^ July, 1997 also enclosed an updated and amended 200 point roster; (e) The Delhi High Court accordingly implemented the 200 Point Roster System as per the OM dated 2"^^ July, 1997, initially on vacancy basis. With effect from 19^^ March, 2008, the 200 Point Roster W.P.(C) 93/2011 Page 3 of[8] System was modified and treated as post based, after the direct recruitment examination held in the year 2007, as the prescribed percentage of reservation on the basis of vacancies for Scheduled Caste was achieved; (f) Once the Delhi High Court had shifted to post based 200 Point Roster System, the exact number of reserved Scheduled Caste vacancy was recalculated as it was mandated and required; (g) With effect from 22"'^ October, 2008, the direct recruitment quota or percentage in the Delhi Higher Judicial Service underwent a reduction from 33% to 25%. Thus, the number of reserved posts advertised in 2007 where no appointments were made, would not necessarily get reflected in the vacant reserved category posts advertised on 7^^ September, 2009. The number of direct recruitment posts had also undergone a change as a result of additional posts created; (h) On this basis, the number of vacancies were calculated and advertised in the direct recruitment examination,

2009. At that time, there was only one vacant reserved Scheduled Caste post. The chart with regard to the vacancies as they existed in the 200 Point post based register as re-casted on the basis of the OM dated July, 1997 has been placed on record.

6. Thus, according to the respondent, the Delhi High Court, W.P.(C) 93/2011 Page 4of[8] I there was only one vacant reserved post for a Scheduled Caste candidate as per the calculations made by them. Accordingly, one such post was advertised in the direct recruitment examination conducted in the year 2009. The said post has been duly filled up and this is an acceptedposition.

7. Learned senior counsel appearing for the petitioner, however, submits thatthere is a miscalculation on the part of the ^ respondent. He has drawn our attention to Annexure Dat page 242 of the paper book and submitsthat as per the said list, there V" were 59 posts in the 200 Point post based roster as re-casted. It is stated that the cadre strength of direct recruits in the said roster as identified was not 59 but in fact was 61. He has drawn our attention to Annexure E at page 244 of the paper book in W which the cadre strength has been mentioned as 61 and post at Sr. No.61 is identified as a vacant post for a Scheduled Caste candidate.

8. The answer givento the said contention by the DelhiHigh Court is that this post at Sr.No.61 was duly taken into consideration while computing the vacant post reserved for Scheduled Castes and Scheduled Tribes candidates in the advertisement dated 7^^ September, 2009.

9. We examined the list (Annexure E) at page 244, which W.P.(C) 93/2011 y exposits the vacant post position as on 14*^ May, 2009. It is clear from the said Hst that there were 8 Scheduled Caste candidates working on the specified and earmarked posts till Sr. No.54. The next and only vacant post as per the roster for a Scheduled Caste candidate was at Sr. No.61. As this post at Sr. No.61 was vacant, the same was advertised and filled up. This contention of the petitioner therefore cannot be accepted.

10. Another contention raised by the learned senior counsel appearing for the petitioner is that Mr. Lai Singh, a Scheduled Caste category candidate at Sr. No.15 was to retire on 31®^ January, 2010 and this anticipated vacancy should have been included in tlie direct recruitment examination, 2009. He has placedrelianceuponthedecisionof«.eDelhiHi^Courtdated 3- October, 2008 in W.P.(C) 2688 of2008, titledAjay Kumar Jain versus Lt. Governor and Anr and other cases, aforesaid decision may supportthe petitionerinthis regard, but the stand of the Delhi High Court is that one Mr. Ramesh Kumar, aScheduled Caste candidate, who had participated m 2007 examination, was accommodated and appointed agamst,HispostconsequenttoretirementofMr.LaiSingh. Thefactual positionthatMr.KameshKumar,ascheduledcastecandidate Court is accepted. In view of the aforesaid position, we do not think that the petitioner can derive any benefit from the retirement ofMr. Lai Singh on31'^ January, 2010.

11. At this stage, we would also take notice of the contention of the counsel forthe respondent, the Delhi High Court, who has relied upon several decisions to the effect that, (i) only the vacancies as advertised can be filled up and it would be illegal and contrary to law to fill up vacancies beyond the vacancies advertised; and, (ii) the petitioner was well aware that only one vacancy was advertised for Scheduled Caste candidates in the advertisement published on September, 2009, and having participated and taken chance knowing the said factual position, the petitioner is prohibited and estopped from questioning the number of vacant posts as advertised. Learned counsel for the petitioner has, however, submitted that the petitioner was unaware of the factual position and, therefore, is not barred or prohibited from raising the contentions so raised. We have examined the merit of the assertions made as to the number of vacancies and the also the factual position regarding the actual number of vacancies reserved for Schedule Caste candidates. We have also taken note of the two contentions raised by the respondent, the Delhi High Court on maintainability ofthe writ Hi petition, but would rather dismiss this writ petition on merits.

10. The writ petition is accordingly dismissed. No costs.

FEBRUARY 13, 2015 NA ^ SANJIVKHANNA,J. ASHUTOSH KUMAR, J. W.P.(C) 93/2011 Page 8of[8]