De-Reservation For Reserved Vacancy Of SC/ST Can Only Be Done By SC/ST Welfare Department Not By Appointing Authority – SC
A two-judge Bench of Justice Indira Banerjee and Justice JK Maheshwari has held that as per Section 7 of the Punjab Schedule Castes and Backward Classes (Reservation in Service) Act, 2006, de-reservation for the reserved vacancy by the appointing authority is restricted and such an exercise can only be carried out by the Department of Scheduled Castes and Backward Classes.
The Supreme Court was hearing an appeal through which the Appellant had sought a direction to the Government of Punjab to fill up the vacancies of ETT (Education Trained Teacher) for SC/ST category from that of OBC candidates who were eligible by interchanging the seats from SC/ST quota as per the policy letter (dated 17.03.1954) of the State Government.
The Court declined to interfere with the impugned order of the Punjab and Haryana High Court which had rejected the Appellant's contention of de-reservation.
In this context, the Court held –
"At this stage it cannot be lost sight that the merit list was prepared in furtherance to the advertisement of the year 20152016 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."
Senior Counsel Mr. P.S. Patwalia appeared for the Appellants while Counsel Mr. Karan Bharihoke appeared for Respondents 2 to 4 before the Apex Court.
In this case, a PIL came to be registered by the High Court as certain applicants belonging to backward class category protested by holding out threats to commit suicide against the inaction of the State of Punjab in filing vacancies of ETT.
It was alleged that the protestors they had qualified their test and were eligible for appointment as ETT. They further insisted that a meeting be held regarding their demands with the Chief Minister of Punjab. The said incident gathered media attention, whereafter, the High Court of Punjab and Haryana took "suomoto" cognizance on the issue on judicial side treating it as Public Interest Litigation, registering the same i.e., as CWP. No. 24383 of 2016.
The High Court thereafter disposed of the appeal and passed an interim order for filling up the vacancies.
The Government thereafter, filled posts of ETT as per merit and reservation, however, due to the non-availability of eligible candidates in the SC/ST category 595 posts remained vacant for the said category.
The Appellants had sought the interference of the Court to direct de-reservation of the vacant posts and allow the 595 vacant posts to be allotted to the eligible Backward Classes. They had claimed interchangeability of the 595 unfilled posts of SC/ST category to Backward Class category as per the Policy letter No. 17246.
The Apex Court noted that as per Section 7 of the 2006 Act, it was clear that de-reservation of any reserved vacancy which is to be filled up by way of direct recruitment or by promotion cannot be done by the appointing authority. In this context, the Bench opined –
"In case due to nonavailability of the eligible candidates of any of the category, the postsremain unfilled, the appointing authority may request to the Department of Welfare of Scheduled Castes and Backward Classes for dereservation of the said unfilled vacancy."
Further, the Court held that the upon receiving such a request and after 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.
"It is clear that as per Section 7 of 2006 Act, dereservation for the reserved vacancy by the appointing authority is restricted. The said dereservation may be possibly directed by the Department of Welfare of Scheduled Castes and Backward Classes if it is expedient in public interest after recording satisfaction for such dereservation. In the said contingency the department shall pass an order assigning those reasons. Thus, in the context of 2006 Act also the dereservation or interchangeability may be possible with a rigour to exercise such power by the department, namely; Department of Scheduled Castes and Backward Classes and not by appointing authority," the Bench held.
Additionally, the Court observed, "The High Court has rightly observed that steps taken by the protestors were unfortunate, improper and incorrect. The suo moto PIL No. 1082019 was entertained to save the life of protesting youth, and it should not be influenced by misplaced notions and they may be counselled or guided by the authorities."
The Court also held that rejection of such a claim of the Appellants by the departmental authorities by relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy Letter No. 17246 would not confer any right to the Appellants to claim the reliefs sought.
In this context, the Bench held –
"Such an act of the departmental authorities may be deprecated but it would not confer any right to the appellants to seek direction of interchangeability of the unfilled 595 posts of ETT of SC/ST category to OBC category."
In the light of these observations, the Court dismissed the appeal.
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