Y.V.CHANDRACHUD - (1.) THE petitioners Prem Prakash and Dal Chand Anand are members of a scheduled caste. By these writ petitions under Art. 32 of the Constitution they ask for a writ of mandamus directing the respondents to appoint them against the vacancies reserved for members of Scheduled Castes and Scheduled Tribes in the Delhi Judicial Service. THEy also ask for a writ of prohibition to the effect that the respondents should not fill up the reserved vacancies for which they competed either by holding a fresh examination or by appointing candidates who had qualified in any previous examination. THE Union of India, the Administrator of the Union Territory of Delhi and the Registrar of the Delhi High Court are respondents 1, 2 and 3 to these petitions.
(2.) ON Sept. 26, 1979, the Registrar of the Delhi High Court published a newspaper advertisement that the Delhi High Court will hold an examination for recruitment of officers to the Delhi Judicial Service on Jan. 11, 12 and 13, 1980 in the time scale pay of Rs. 650-1200. The advertisement stated that the total number of vacancies was 16 out of which 2 were reserved for Scheduled Castes and 1 for Scheduled Tribes. In addition according to the advertisement, there were 2 carry-forward vacancies for members of Scheduled Tribes. In case of non-availability of Scheduled Tribes candidates those vacancies were liable to be transferred as reserved vacancies for Scheduled Castes candidates. A competitive examination was held in pursuance of the said advertisement in accordance with the Delhi Judicial Service Rules 1970 which were framed by the Lieutenant Governor of Delhi in consultation with the High Court of Delhi. Rules 18 and 28 read thus : "Rule 18 - The Selection Committee shall prepare a list of candidates in order of merit. Such list will be forwarded to the Administrator for filling the vacancies then existing or any vacancy that may occur within a period of one year of the preparation of the list." "Rule 28 - Appointments made to the Service by competitive examination shall be subject to order regarding special representation in the Service for Scheduled Castes and Scheduled Tribes issued by the Central Government from time to time." The Brochure 'on Reservation for Scheduled Castes and Scheduled Tribes in Services'. (5th ed., 1978) issued by the Government of India, Dept. of Personnel and Administrative Reforms. Ministry of Home Affairs contains orders and instructions issued by the Government of India from time to time on the question of reservation of vacancies for Scheduled Castes and Scheduled Tribes candidates. The relevant paragraphs of that Brochure read as follows :- "2. Subject to Exemptions and Exclusions referred in Chapter 3, the following reservations are in force in favour of SC and ST in filling vacancies in posts and services under the Govt. of India. (1) Direct recruitment on an all India basis :- JUDGEMENT_687_SUPP1_1984Html1.htm "4.2 The actual number of vacancies to be reserved for SC and ST in any recruitment should be determined on the basis of the points in the roster and also taking into account the reservations brought forward from the previous year the total number of reservations not exceeding normally 50 Per Cent of the total number of vacancies filled in that year. However the carry forward reserved vacancies would be available together with the current reserved vacancies for utilisation even where the total number of such reserved vacancies exceed 50 Per Cent of the vacancies filled in that year provided the over all representation of SC/ST in the total strength of the concerned grade or cadre is found to be inadequate i.e. the total number of SC/ST candidates in that grade has not reached the prescribed percentage of reservation for SC/ST respectively in the grade as a whole". "9.2 Advertisement of reserved vacancies for posts filled by direct recruitment through examination :- Where direct recruitment is made through examination for reserved as well as unreserved vacancies a single advertisement would be issued for such examination but the number of the vacancies reserved for SC and ST would be specified clearly in it and in case the required number of SC or ST candidates are not available even by applying relaxed standards for the vacancy/vacancies reserved for them the remaining vacancy/vacancies should be filled by general candidate after dereservation of such vacancy/vacancies subject to the reservations being carried forward as required". "11.1 Carry over of reservations :- If a sufficient number of reserved communities candidates fit for appointments against reserved vacancies are not forthcoming such vacancies can be dereserved after following prescribed procedure for dereservation as in Chapter 10 and thereafter they can be filled by candidates of other communities but the reservations shall be carried forward to subsequent three years of recruitment (except in the case of ... ) where there will be no carry forward of unfilled reserved vacancies the total number of reservations not exceeding normally 50 Per Cent of the total number of vacancies to be filled in that year. The surplus if any above 50 Per Cent when the ceiling of 50 Per Cent is applied shall be carried forward to the subsequent year of recruitment subject however to the condition that the particular vacancies carried forward do not become time-barred due to their becoming more than three years old. However, the carried forward reserved vacancies would be available together with the current reserved vacancies for utilisation even where the total number of such reserved vacancies exceeds 50 Per Cent of the vacancies filled in that year provided the overall representation of SC & ST in the total strength of the concerned grade or cadre is found to be inadequate i.e. the total number of SC/ST candidates in that grade has not reached the prescribed percentage of reservation for SC/ST respectively in the grade as a whole". "Note (2) :- Any recruitment of SC/ST candidates will first be counted against the additional quota brought forward from the previous years in their chronological order. If SC/ST candidates are not available for all the vacancies the older carried forward vacancies should be filled first and the comparatively later carried forward vacancies should be further carried forward".
(3.) THE petitioners appeared for the examination and passed it, through by relaxation of the minimum standard prescribed for passing the examination. THEy were then asked to appear at the viva voce test conducted by the Selection Committee which they did. Since only seven open candidates and four Scheduled Caste candidates qualified in these tests the High Court prepared a merit list of 11 candidates as against 16 vacancies which were advertised. Dal Chand Anand who is petitioner in Writ Petition No. 2962 of 1981 was 10th in the merit list while Prem Prakash who is petitioner in Writ Petition No. 4480 of 1980 was 11th in that list. THEy were respectively 3rd and 4th in the merit list amongst the 4 Scheduled caste candidates. Since they did not figure in the final list of candidates selected by the Administrator they have filed these petitions to challenge their exclusion and non-appointment. A counter-affidavit has been filed on behalf of respondent 3 by Shri Ramesh Sharma. Assistant Registrar of the Delhi High Court. The position taken up by the Delhi High Court in that affidavit may be summarized thus : The Delhi Judicial Service was constituted on Aug. 2, 1971 R. 28 which provides for special representation for members of the Scheduled Castes and Scheduled. Tribes is applicable to the recruitment made through a competitive examination only and therefore no reservations were made either in favour of Scheduled Castes or Scheduled Tribes at the stage of the initial recruitment to the Service which was not by competitive examination. Representations were however made to the Ministry of Law and Justice as a result of which the Delhi Administration was instructed administratively to take suitable steps, if necessary by amendment of the recruitment Rules so as to provide for reservations for the Scheduled Castes and Scheduled Tribes at the initial constitution of the Service also. In a meeting of officers of the Ministry of Law and Justice the Delhi Administration and High Court which was held in Nov. 1971 it was decided that 15 per cent of the vacancies filled in the Delhi Judicial Service should be reserved for Scheduled Castes and 71/2 per cent for Scheduled Tribes and that vacancies which ought to have been reserved for these categories at the initial recruitment should be carried forward to the following year. The statutory rules were not amended in pursuance of this decision which is but one instance of the wide chasm which exists between the lip service paid to the need for reservations for backward classes and the actual performance in terms of social awareness.;