SUNIL RATHEE Vs. STATE OF HARYANA
LAWS(SC)-2020-7-15
SUPREME COURT OF INDIA
Decided on July 23,2020

Sunil Rathee Appellant
VERSUS
STATE OF HARYANA Respondents


Referred Judgements :-

INDRA SAWHNEY VS. UNION OF INDIA [REFERRED TO]
LUNAWAT CONSTRUCTION VS. UNION OF INDIA [REFERRED TO]
M NAGARAJ VS. UNION OF INDIA [REFERRED TO]
L K VENKAT VS. UNION OF INDIA [REFERRED TO]
COMMISSIONER OF SERVICE TAX ETC. VS. M/S. SRI SELVAGANAPATHY AND CO. [REFERRED TO]


JUDGEMENT

ANIRUDDHA BOSE, J. - (1.)The petitioners in this proceeding seek transfer of a writ petition registered as CWP No 7607 of 2019 ( O & M) (the writ petition) pending in the High Court of Punjab and Haryana to this Court. The main ground on which such plea is made is that this Court is hearing certain appeals on near identical point to the one which forms subject of controversy in the aforesaid Writ Petition. The said appeals are registered as Civil Appeal Nos. 9546-9549 of 2016 (State of Gujarat and Ors. etc. vs. Ms Dulari Mahesh Basagre & Anr. etc). In the writ petition, under challenge is a notification issued by the State of Haryana bearing no. 733 SW (1|)- 2013 dated 27th September 2013 providing for 10% vertical reservation for economically backward persons in general category in certain fields of public employment. According to the petitioners, such reservation would take the total number of reserved posts beyond the 50% limit laid down by this Court in the cases of Indra Sawhney vs. Union of India (1992) Supp (3) 217) and M. Nagraj vs. Union of India (2006 (8) SCC 212). The petitioners' specific grievance is in relation to such reservation in recruitment of shift attendants, category-I for which posts they are aspirants from the general category. The process of such recruitment was initiated by a recruitment advertisement issued by the Haryana Staff Selection Commission (the Commission) on 20th February 2016. It appears from the pleadings in the writ petition, a copy of which has been annexed to the present petition, that out of the 2426 posts of "shift attendants" in category-I advertised, 674 posts were for general category and the rest were reserved.
(2.)The writ petitioners have participated in the selection process for category I of shift attendant which was initiated by a public advertisement issued on 20th February 2016. There was 10% reservation for economically backward persons category, commonly referred to as (EBPG category) in terms of the said notification of 2013. The petitioners in their writ petition have contended that they are hopeful of being selected for the job in the event the 10% reservation of the EBPG category is removed. It is in this perspective they brought the writ petition before the Punjab and Haryana High Court questioning the reservation provisions contained in the said notification of 2013. I am apprised by the learned counsel appearing for the parties that several other writ petitions have also been filed in the same High Court with similar grievances. The main reason for pressing the present petition under Article 139A of the Constitution of India is that on identical point the Gujarat High Court has, in the case of Dayaram Khemkaran Vs. State of Gujarat and Others, invalidated an ordinance issued by the State of Gujarat (Gujarat Ordinance No. 1 of 2016) providing reservation of seats in the educational institutions in that State and of appointments and posts in the services under the state in favour of economically weaker sections of the unreserved categories and that decision is under appeal before this Court. The Gujarat High Court has relied on, inter-alia, the case of Indra Sawhney (supra), for coming to such conclusion in the judgment under appeal. Leave has been granted by this Court under Article 136 of the Constitution of India in the petitions for special leave to appeal filed by the State of Gujarat (C.A 9546-49/16) and these appeals involve the same or similar constitutional and legal questions on the basis of which the writ petition has been instituted before the Punjab and Haryana High Court.
(3.)The State of Haryana has opposed the plea for transfer and reliance has been placed on their behalf on a decision of this Court in the case of Commissioner of Services Tax vs. Sri Selvaganapathy and Co. (2018(4) SCC 578). In this case, it has been observed:-
"The ground that the same issue is pending before this court in Civil appeal No. 2013 of 2014 is not sufficient ground for transfer of the writ proceedings from the High Court to this Court in as much as once the decision of this Court is rendered in the aforementioned civil Appeal, the same can be brought to the notice of the High Court and in the meantime the High Court can be requested to defer the proceedings in the writ petitions pending before it."

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