Under Punjab Scheduled Castes & Backward Classes (Reservation in Services) Act, interchangeability of vacant SC posts can be done by SC Welfare Department but not by Appointing Authority, rules Top Court

Read Judgment: Mandeep Kumar & Others V. U.t. Chandigarh & Others

Pankaj Bajpai

New Delhi, March 11, 2022: In a case where the claims of eligible candidates to the posts of Elementary Trained Teachers (ETT) were rejected by the departmental authorities relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy letter, the Supreme Court has held that such an act of the authorities may be deprecated but it would not confer any right to the appellants-candidates to seek direction of interchangeability of the unfilled 595 posts of ETT of SC/ST category to OBC category. 

A Division Bench of Justice J.K Maheshwari and Justice Indira Banerjee observed that issuance of 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, and 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.

The observation came pursuant to a suo moto PIL registered by the High Court of Punjab & Haryana pertaining to inaction of the State of Punjab in filling up of vacancies of ETT, which were advertised vide two separate advertisements dated November 8, 2015 and September 30, 2016. In the said advertisements, total of 4500 and 2005 vacancies of ETT were notified under various categories inclusive of SC/ST, OBC, freedom fighter, handicapped etc. respectively. 

After entertaining the Public Interest Litigation and as per the interim directions of the High Court, the posts of ETT had been filled up as per merit and category wise. But due to not having selected eligible candidates of SC/ST category, those posts remained vacant. So, it was the grievance of Mandeep Kumar & Others (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. 

After considering the submissions, the Top Court noted 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. 

If 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, added the Court. 

Speaking for the Bench, Justice Maheshwari observed that 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.

Referring to the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006, the Bench said, “As per Section 7 of 2006 Act, de-reservation for the reserved vacancy by the appointing authority is restricted. The said de-reservation 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 de-reservation. In the said contingency the department shall pass an order assigning those reasons. Thus, in the context of 2006 Act also 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”.

Therefore, in the net result, Justice Maheshwari said that 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. 

The letters returned by the Education Department in favour of the appellants to the department concerned were not of much relevance in particular when the department concerned had not agreed upon the request of interchangeability of the unfilled posts of SC/ST category and refused to accept the request of the appointing authority, added the Bench. 

Justice Maheshwari therefore highlighted that the High Court had rightly observed that steps taken by the protestors were unfortunate, improper and incorrect, and the suo moto PIL was entertained to save the life of protesting youth, and it should not have been influenced by misplaced notions and they may have been guided by the authorities. 

Therefore, the Apex Court dismissed the appeal and concluded that the process to fill up the vacant posts of ETT in the State had already been advertised, which was in accordance with law.