Interchangeability of unfilled posts of SC/ST category can be done only by the department concerned, not by appointing authority : SC

Supreme Court: The bench of Indidra Banerjee and JK Maheshwari*, JJ the interchangeability of the vacant unfilled posts of SC category may be possible due to not having eligible candidates by the department concerned but not by appointing authority.

Factual Background

The Court was deciding the case where the appellants have applied for the post of (Elementary Trained Teachers) ETT in9 the category of  Backward Class. Pursuant to the advertisement, selection process was carried out and appointment letters were issued to the selected candidates. All the notified posts of Backward Classes have been filled up merit wise after the direction of the High Court. In the said process of selection, 595 posts of SC/ST   category remained unfilled on account of “non availability” of eligible candidates in the said category. The appellants claimed appointment against those vacant posts of SC/ST category on the anvil of policy instructions regarding “Reservations of vacancies in State Government Services of members of Backward Classes”, issued by State of Punjab. The aforesaid Policy letter provide for “de-reservation/interchangeability” of the post from SC/ST category to OBC category or vis-à-vis in a contingency of non-availability of eligible candidates belongs to SC/ST or OBC, as the case may be. The appellants submitted various representations to the concerned authorities on the basis of the said Policy letter for interchangeability of the posts of SC/ST into OBC category, which as per appellants was not considered in a right perspective. Now by order impugned as per the statement made by the State Government those posts are being readvertised, without redressing their grievance. It is the grievance of the appellants that the unfilled posts of SC/ST category may be filled from the eligible candidates of Backward Class category, directing interchangeability of the said vacant posts.

Analysis

The Court explained that de-reservation of any reserved vacancy which is to be filled up by direct recruitment or by promotion cannot be done by the appointing authority. In case due to non-availability of the eligible candidates of any of the category, the posts remain unfilled, the appointing authority may request to the Department of Welfare of Scheduled Castes and Backward Classes for de-reservation of the said unfilled vacancy. On such request 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.

Thus, in the context of Punjab Schedule Castes and Backward Classes Reservation in Service) Act, 2006 also it was observed that the de-reservation 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.

Examining the impugned Policy letter, the Court observed that those instructions are not in contravention of the provisions of Section 7 of the 2006 Act; in fact, it is as per the spirit of the 2006 Act.

The Court also took note of the fact that the merit list was prepared in furtherance to the advertisement of the year 2015-2016 and to accommodate the candidates of the said merit list. Thereafter interchangeability for unfilled 595 vacancies of SC/ST category has been prayed for. Hence, 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.

Also, rejection of claims of appellants by the departmental authorities relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy letter would not confer any right to appellants to claim the reliefs.

“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.”

[Mandeep Kumar v. UT Chandigarh, CIVIL APPEAL NO. 1908 OF 2022, decided on 06.03.2022]


*Judgment by: Justice JK Maheshwari


For appellants: Senior Advocate P.S. Patwalia

For Respondents: Advocate Karan Bharihoke

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