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Madhya Pradesh High Court · body

2011 DIGILAW 227 (MP)

Vikash Shukla v. High Court of M. P.

2011-02-17

R.S.JHA, S.R.ALAM

body2011
ORDER 1. Shri Aditya Sanghi, learned Counsel for the Petitioner. Shri Ashish Shroti, learned Counsel for Respondent. Heard on the question of admission. 2. In the instant writ petition filed under Article 226 of the Constitution of India, the Petitioner come up for issuance of a writ of mandamus commanding the Respondent to appoint the Petitioner on the post of Civil Judge Class-II as per his merit against the post reserved for the Scheduled Tribe category as 9 posts reserved for the Scheduled Tribe category candidates are lying vacant on account of non-availability of candidates belonging to that category. 3. Facts giving rise to filing of the instant writ petition briefly stated are that the Petitioner is an advocate of this Court and practicing since 2007. He appeared in the examination for selection and appointment on the post of Civil Judge Class-II in the year 2010. The Petitioner was placed at Serial No. 3 of the waiting list therefore, not being in the main list, he was not given appointment. It appears that 9 posts, which were reserved for Scheduled Tribe category candidates could not be filled up on account of non-availability of Scheduled Tribe candidates. It is submitted by the Petitioner that these 9 posts reserved for Scheduled Tribe candidates which are lying vacant may be directed to be filled up from amongst the selected and wait-listed candidates belonging to the general category. Learned Counsel for the Petitioner, vehemently, contended that since the Petitioner is at Serial No. 3 of the waiting list, he may be considered and given appointment against the aforesaid 9 posts which are lying vacant. 4. On the other hand, the learned Counsel appearing on behalf of the Respondent opposed the prayer and submitted that the appointment and selection of Civil Judge Class-II is governed by the provisions of the M.P. Lower Judicial Service (Recruitment and Conditions of Service) Rules, 1994 (hereinafter referred to as the Rules of 1994 for brevity)and as there is no provision in the rules to de-reserve or fill up vacant seats of the reserved categories by general category candidates in the event a qualified candidate of the reserved category is not available, no writ can be issued. 5. We have considered the submissions of the learned Counsel for the parties. 6. 5. We have considered the submissions of the learned Counsel for the parties. 6. The selection to the post of Civil Judge Class-II is made in accordance with the provision of Rule 6 of the Rules of 1994. Rule 6 of the aforesaid Rules of 1994 provides for reservation as per Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 (hereinafter referred to as the Act of 1994 for short). For ready reference Rule 6 is extracted hereinafter: 6. Reservation of Posts for Scheduled Castes, Scheduled Tribes and Other Backward Classes. - Posts for direct recruitment shall be reserved for the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes in accordance with the provisions of the Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Janjatiyon Aur Anya Pichhade Vargaon Ke Liye Arakshan) Adhiniyam, 1994 (No. 21 of 1994). 7. Thus, reservation in respect of appointment to the post of Civil Judge Class-II is to be governed by the Act of 1994. Section 4 of the Act of 1994 provides as under: 4. Fixation of percentage for reservation of posts and standard of evaluation. -- (I) Unless otherwise provided by or under this Act, the posts reserved for the members of Scheduled Castes or Scheduled Tribes or Other Backward Classes shall not be filled by the members who do not belong to such castes or tribes or classes as the case may be. (2) Subject to other provisions of this Act there shall be reserved for the persons belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes, at the stage of direct recruitment in public service and posts. (i) at the State level, the following percentage of vacancies arising in a recruitment year, in class I, II, III and IV posts. (a) in class I and II posts-Scheduled Castes 16 percent Scheduled Tribes 20 percent Other Backward Classes 14 percent. (b) Class III and Class TV posts-Scheduled Castes 16 percent Scheduled Tribes 20 percent Other Backward Classes 14 percent. (ii) in an establishment at the Divisional or District level the percentage of vacancies arising in a Recruitment year in such categories of Class III and Class TV posts as may be notified by the State Government in this behalf. (b) Class III and Class TV posts-Scheduled Castes 16 percent Scheduled Tribes 20 percent Other Backward Classes 14 percent. (ii) in an establishment at the Divisional or District level the percentage of vacancies arising in a Recruitment year in such categories of Class III and Class TV posts as may be notified by the State Government in this behalf. (iii) the appointments to vacancies as aforesaid in (i) and (ii), shall be made in accordance with a roster as may be prescribed: Provided that the aforesaid reservation shall not apply to such categories of persons belonging to the other Backward Classes as are notified by the State Government as belonging to the creamy layer from time to time. (3)(a) If in respect of any recruitment year any vacancy reserved for any category of persons under Sub-section (2) remains unfilled, such vacancy shall be carried forward to be filled up in the next or a subsequent recruitment year. (b) When a vacancy is carried forward in the manner aforesaid it shall not be counted against the quota of the vacancies reserved for the concerned category of persons for the recruitment year to which it is carried forward; Provided that the appointing authority may at any time undertake a special recruitment to fill up such unfilled vacancy and if such vacancy remains unfilled even after such special recruitment it shall be filled up in the manner as the State Government may prescribe. (c) Wherever the reserved vacancies for Scheduled Castes and Scheduled Tribes in all cases of direct recruitment or promotion have remained unfilled in the earlier year or years, the backlog and/or carried forward vacancies would be treated as a separate distinct group and will not be considered together with the reserved vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year. In other words, the ceiling of fifty percent on filling up of reserved vacancies would apply only on the reserved vacancies which arise in the current year and the backlog/carried forward reserved vacancies for Scheduled Castes or Scheduled Tribes of earlier year or years would be treated as a separate and distinct group and would not be subject to ceiling of fifty percent: Provided that the appointing authority may at any time undertake a special recruitment to fill up such unfilled vacancies and if such vacancies remain unfilled, it shall not be de-reserved in any manner for filling up by the person not belonging to the category for whom the post or posts are reserved. (4) If a person belonging to any of the categories mentioned in Sub-section (2) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under Sub-section (2). (4-A) The State Government may by general or special order make any provisions in favour of the members of the Scheduled Castes and the Scheduled Tribes, for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of recruitment and promotion to any class or classes or services or posts in connection with the affairs of the State. (5) If, on the date of commencement of this Act, reservation was in force under Government orders for appointment to post to be filled by promotion, such Government orders shall continue to be applicable till they are modified or revoked. (5-A) The State Government may make rules or issue any instructions in the matters of promotion with consequential seniority to any class or classes of posts in the Civil Services of the State in favour of the Scheduled Castes and the Scheduled Tribes. 8. (5-A) The State Government may make rules or issue any instructions in the matters of promotion with consequential seniority to any class or classes of posts in the Civil Services of the State in favour of the Scheduled Castes and the Scheduled Tribes. 8. A perusal of the aforesaid provision specifically Section 4(3)(a), 4(3)(b) and the proviso thereto clearly reveals that if the post meant for reserved category in respect of any recruitment year remains unfilled, it shall be carried forward to be filled up in the next or subsequent recruitment year and shall not be counted against the quota reserved for the reserved category of the recruitment year to which it is carried forward, provided that the authority may take up special recruitment to fill up such unfilled posts and only, in case they still remain unfilled can they be filled up in the manner prescribed by the State Government. A perusal of the section makes it further clear that the vacancies cannot be filled up by the candidates who do not belong to such castes or tribes or classes except in the manner prescribed by the State in the eventualities mentioned in the proviso to Section 3(b) of Section 4. 9. Thus, in view of the clear bar as provided in Section 4 of the Act of 1994, we are afraid that the relief sought for in the instant writ petition cannot be granted in the facts and circumstances of this case. 10. At this stage, the learned Counsel for the Petitioner further submitted that in respect of Higher Judicial Services, the posts belonging to the reserved category that remained vacant in the past were allowed to be filled up from amongst the candidates belonging to the general category. We do not find any force in the submission of the learned Counsel for the Petitioner in view of the distinct and different provisions of law governing the two services. 11. A perusal of the provision of Section 3 of the Act makes it clear that it does not apply to appointments made to the Madhya Pradesh Higher Judicial Services. Further, Rule 6 of Madhya Pradesh Uchchtar Nyayik Seva (Bharti Tatha Seva Sharten) Niyam, 1994 provides that in the event the posts belonging to reserved category remain unfilled, they can be filled up from amongst general category candidates. Further, Rule 6 of Madhya Pradesh Uchchtar Nyayik Seva (Bharti Tatha Seva Sharten) Niyam, 1994 provides that in the event the posts belonging to reserved category remain unfilled, they can be filled up from amongst general category candidates. Rule 6 of the aforesaid Rules of 1994 reads as under: 6. Reservation of posts for Schedule Castes/Scheduled Tribes, and Other Backward Classes. -- 15%, 18% and 14% of posts for direct recruitment shall respectively be reserved for the candidates who are members of the Scheduled Castes, Scheduled Tribes and Other Backward Classes respectively: Provided that if sufficient number of candidates belonging to Scheduled Castes/Scheduled Tribes & Other Backward Classes are not available, such posts shall be treated as "unreserved". 12. Thus, it is clear that the proviso of the aforesaid Rule 6 of the Higher Judicial Service Rules provides that the post meant for the reserved category candidate if not filled up on account of non-availability of eligible candidate, the same shall be treated as unreserved and, thus, the same would be filled up from amongst the general category candidates. Therefore, in view of the clear provisions of the Higher Judicial Services Rules and also in view of the clear exclusion under Section 3 of the Act of 1994, the parity claimed by the Petitioner is misconceived and misplaced and no relief on that ground can be granted. 13. In view of the aforesaid, the petition being devoid of merit stands dismissed.