P.S. GHALAUTversusSTATE OF HARYANA AND ORS.

A                             P.S. GHALAUT
                                     v.
                       STATE OF HARYANA AND ORS.

                                 AUGUST 3, 1995

B             [K. RAMASWAMY AND K.S. PARIPOORNAN, JJ.)

          Se1Vice Law :

          Hwyana Medical Education Se1Vice Rules, 1965:
c          Rule 13-Second proviso-lnter-se Seniority-Order of merit deter-
    mined by Service Commission-Backward class quota-JOO point
    roaste~Some places eamiarked for reserved candidates-171e order of merit
    indicated in the Second proviso applies only to inter-se the general candidates
    or rese1ved candidates but gets changed when vacancies are filled up as per
D   roaster and appointments made thereundel'-"Roaster Scheme held valid and
    not arbitrary-Hence constitutional.

          Constitution of India, 1950:

          A1ticles 14, 16(1) & (4), 335-lnter-se Seniority-Fixation of-Roaster
E scheme followed under Rule 13-Second Proviso of the Haryana Medical
    Education Se1Vice Rules, 1965-Constitution Validity of-Held: Valid.

           This appeal relates to inter-se seniority between the appellant and
    one NA, who belonged to backward class. In his writ petition before the
    High Court, the appellant contended that since the order of merit given by
F   the Selection Committee and the letter of appointment indicated that he
    was high up in the order of merit to NA, he was senior to her, as per the
    second proviso to Rule 13 of the Haryana Medical Education Service
    Rules, 1965. The High Court rejected the contention and dismissed the writ
    petition. Hence this appeal.
G
          Dismissing the appeal, this Court

          HELD : 1.1. It is true that Rule 13 of the Haryana Medical Education
    Service Rules, 1965 envisages that the seniority i'!ter se of members of the
    service shall be determined by the length of continuous service on any post
H   in the service provided further that in the case of two or more members
                                         506
                             P.S. GHALAUT v. STATE                         507

     appointed by direct recruitment the order of merit determined by the        A
     Commission shall not be disturbed in fixing the seniority. (509-E]

            1.2. When the roaster is maintained to give effect to the constitution-
,.   al policy of reservation to render socio-economic justice to the concerned
     sections, respective places assigned to the candidates belonging to them,
     general candidates, backward classes or Scheduled Castes or Scheduled B
     Tribes, as the case may be, the change in the order of merit inevitably gets
     affected. If original order of merit prepared by the Public Service Com-
     mission or Selection Committee, if remains unaffected, roaster becomes
     redundant and always remains unimplemented. The reserved candidates
     always remain at the bottom of the selection list unless selected as general C
     candidates in the order of merit. To relieve such injustice and hardship,
     roaster is maintained and vacancies are filled up in the order maintained
     therein. The placement of candidates shall be to the respective points f1Xed
     in the roaster. [509-H; 510-A-B]

           1.3. Though general candidate is more meritorious in the order of     D
     merit prepared by the Public Service Commission or the Selection Com-
     mittee, when the appointments are made and the vacancies are filled up
     according to the roaster, necessarily and inevitably the Reserved can-
     didates though less meritorious in the order of merit maintained by the
     Public Service Commission would occupy the respective places assigned in    E
     ihe roaster. Thereby· they steal a march over some of the ge~eral can·
     didates and get seniority over the general candidates. This scheme, is,
     therefore, constitutional, valid and is not arbitrary. [510-E-F]

           1.4. The order of merit indicated in the second proviso would be
     applicable only inter se to the general candidates or reserved candidates F
     but gets changed when vacancies are filed up as per roaster and appoint·
     ments are made thereunder. The High Co~rt, therefore, was right in
     holding that the 2nd proviso to Rule 13 is inapplicable to the facts and
     was also right in its finding that when appointments are made to fill up
     the vacancies in the order or roaster, the order of merit prepared by the G
     Selection Committee get changed. [511-A-B]

             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7608 of
     1995.

             From the Judgment and Order dated 3.5.93 of the Punjab & Haryana    H
    508                    SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A   High Court in C.W.P. No. 4946 of 1993.

          Manoj Goel and Ravathy Raghavan for the Appellants.

         Sunil Gupta, Ms. lndu Malhotra, Dania Pradhan and S.C. Patel for
    the Respondents.
B
          The following Order of the Court was delivered :

          Leave granted.

          We have heard the learned counsel on both sides. The undisputed
C facts are that the appellant as a general candidate and the third respon-
    dent, Dr. Nitya Anand to backward class quota were selected for appoint-
    ment as lecture in the Haryana Medical Education Service as per H.M.E.S.
    Rules, 1965 (for short, 'the Rules'). The Public Service Commission recom-
    mended the names of the appellant and Dr. Nitya Anand along with three
D   other candidates for appointment as lecturers. It would appear that Dr.
    Diwakar Jain and Dr. Sidharth Dass had not joined the service. Though
    Dr. Om Prakash Kalra initially had joined the service, he too left the
    service. Consequently the appellant, as general candidate and Dr. Nitya
    Anand remained in Sf'.rvice.

E        The question is whether the appellant is senior to Nitya Anand. The
  contention of the appellant is that since .the order of merit given by the
  Selection Comniittee and the letter of appointment do indicate that the
  appellant is high up in the order of merit to Dr. Nitya Anand, he is senior
  to the later. While maintaining inter se seniority by wrong interpretation
F Dr. Nitya Anand has been made senior to the appellant which is contrary
  to the Ilnd proviso to Rule 13 of the Rules. This contention was not
  accepted by the High Court in the impugned Judgment dated May 3, 1993
  in Civil W.P. No. 4946/93 by the Punjab & Haryana High Court at Chan-
  digarh. Shri Manoj Kumar, learned counsel appearing for the appellant
G relying upon the instructions issued by the Chief Secretary, dated April 27,
  1972 and the Judgment of the Division Bench of that Court in Bhupender
  Singh v. Haryana Warehousing Corporation in Civil W.P. No. 2006/92 dated
  June 2, 1992 contended that when the Selection Committee had mentioned
  inter se seniority in the order of merit, the State has no power to interfere
  with the inter se seniority. The same seniority shall be continued to be
H maintained while fixing inter se seniority after the appointment given to the
                         P.S.GHALAUT v. STATE                           509

respective candidat~s. The High Court, therefore was not right in uphold-      A
ing the action of the respondents. The learned counsel for the respondents
have resisted the contention.

        We have given our anxious consideration to the respective conten-
tions. The question is whether Dr. Nitya Anand is senior to the appellant. B
In 100 point roaster maintained by the State Government, the Government
have earmarked some places to the reserved candidates. In the instructions
issued by the Chief Secretary on April 27, 1972, it was specifically stated
that the vacancies reserved for Scheduled Castes and Backward Classes
shall be filled up to those specified points enumerated in the roaster. To
give effect to the Public Policy of reservation envisaged in Article 16(4)    c
read with Articles 14 and 16(1}, and consistent with Art. 335, the State
prescribed certain percentage of posts or vacancies and they are required
to be filled as per the roaster. Admittedly, initially 2% posts were reserved
for the backward classes which was later increased to 10%. Vacancies 1 to
9 were filled up by the general candidates. In consequence of the reserva- D
tion to the backward classes, vacancy No.10 was reserved for the backward
classes. Admittedly, Dr. Nitya Anand belongs to the backward class. The
question, therefore, is whether the placement of Dr. Nitya Anand in the
10th place and relegation of the appellant to lower in the order of ranking
in the roaster is valid in law. It is true that Rule 13 of_ the Rules envisages E
that the seniority inter se of members of the service shall be determined by
the length of continuous service on any post in the service provided further
that in the case of two or more members appointed by direct recruitment,
the order of merit determined by the Commission shall not be disturbed
in fixing the seniority. In other words, where the inter se merit has been
determined by the public Service Commission or the Selection Committee, F
as the case may be, and recommended to the Government for appointment,
while accepting the recommendations so made, the Government do require
to maintain the order of merit determined by the Public Service Commis-
sion/Committee. But the question is whether the merit list prepared gets
disturbed then the roaster has been maintained and the placement of the
candidates in the order specified in the roaster when filled up and is it G
illegal, arbitrary or unconstitutional. It is seen that when the ·roaster is
maintained to give effect to the constitutional policy of reservation to
render socio-economic justice to the concerned sections, respective places
assigned to the candidates belonging to them, general candidates, back-
ward classes or Scheduled Castes or Scheduled Tribes, as the case may be, H
    510                  SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A the change in the order of merit inevitably get affected. If original order
  of merit prepared by the Public Service Commission or Selection Commit-
  tee, if remains unaffected, roaster becomes redundant and always remain
  unimplemented. The reserved candidates always remain at the bottom of
  the select list unless selected as general candidates in the order of merit.
  To relieve such injustice and hardship, roaster is maintained and vacancies
B are filled up in the order mai~tained therein. The placement of candidates
  shall be to the respective points fixed in the roaster. Take for instance
  vacancy No. 1 and 6, as pointed out in the Chief Secretary's letter have
  admittedly been reserved for Scheduled Castes. Suppose recruitment was
  made to fill up ten vacancies, three candidates from Scheduled Castes were
c selected. The first one as general and second and third were selected on
  the basis of reserved quota. The question is whether the first candidate will
  be put in the quota allotted to the Scheduled Castes in the roaster. Having
  been selected as a general candidate, though he is more meritorious than
  the second and third candidates, he will not get the placement in the
D roaster, reserved for Scheduled Castes i.e. No. 1 and 6 points. Consequent-
  ly candidates Nos. 2 and 3 will get the placement at No. 1 and 6 and the
  first candidate will get the placement in the order of merit along with the
  general candidates according to the order of merit maintained by the
  Selection Committee or the Public Service Commission. He cannot com-
  plain that having been selected in the merit, he must be placed in the
E placement reserved for Scheduled Castes at Point No. 1 in the roaster.
  Equally, though general candidate is more meritorious in the order of merit
  prepared by the Public Service Commission or the Selection Committee,
  when the appointments are made and the vacancies are filled up according
  to the roaster, necessarily and inevitably the Reserved candidates though
  less meritorious in the order of merit maintained by the Public Service
F
  Commission would occupy the respective places assigned in the roaster.
  Thereby they steal a march over of the general candidates and get seniority
  over the general candidates. This scheme is, therefore, constitutional, valid
  and is not arbitrary.

G         The Chief Secretary in his letter obviously was in error in directing
    to maintain in the roaster th~ same inter seniority maintained by the Public
    Service Commission or Selection Committee. If that is given effect to, the
    roaster points would remain unfilled and rotation therein get disturbed. It
    is obvious that the interpretation of the Rule by the Chief Secretary was
H   found favour with the Division Bench which was strongly relied upon by
                        P.S. GHALAUT v. STATE                           511

the appellant. The order of merit indicated in the second proviso would be     A
applicable only inter se to the general candidates or reserved candidates
but gets changed when vacancies are filled up as per roaster and appoint-
ments are made thereunder. The High Court, therefore, was right in
holding that the 2nd proviso to Rule 13 is inapplicable to the facts and was
also right in its finding that when appointments are made to fill up the
vacancies in the order of roaster, the order of merit prepared by the
                                                                               B
Selection Committee get changed. In these circumstances, the appeal is
dismissed but without costs.

G.N.                                                     Appeal dismissed.