IN THE HIGH COURT OF DELHI AT NEW DELHI
VIBHU BAKHRU, AMIT MAHAJAN, JJ.
Rabindra Tiwary – Appellant
Versus
Lt. Governor, Govt. Of NCT of Delhi & Anr. - Respondents
W.P.(C) 167 of 2023 and CM Nos.598, 599 of 2023
Decided on : 17-01-2023
Constitution of India, 1949 – Article 226 – Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 – Section 7 – Power of High Court to issue certain writs – Impugned Advertisement – Petitioner has filed present petition inter alia praying appointed as a Judicial Officer at Delhi Higher Judicial Service by creating a supernumerary vacancy – Petitioner further prays that directions be issued to respondents to de-reserve vacancies reserved for candidates – Held, Court unable to accept that any order or direction requires to be issued to respondents for undertaking any exercise for de-reservation of vacancies reserved for candidates belonging to Scheduled Castes /Scheduled Tribes – Respondents may undertake exercise for de-reserving vacancies are de-reserved same would be available for being filled pursuant to selection exercise conducted in future – Petition is unmerited dismissed.
JUDGMENT :
VIBHU BAKHRU, J.
1. The petitioner has filed the present petition, inter alia, praying that he be appointed as a Judicial Officer at the Delhi Higher Judicial Service (hereafter ‘DHJS’) by creating a supernumerary vacancy. The petitioner further prays that directions be issued to the respondents to de-reserve the vacancies reserved for candidates belonging to Scheduled Castes and Scheduled Tribes by amending the advertisement published on 24.02.2022 (hereafter ‘the impugned advertisement’) issued for inviting applications for Delhi Higher Judicial Service Examination - 2022 (hereafter ‘DHJS Exam-2022’). The petitioner also prays that he be considered for appointment as a person belonging to the Economically Weaker Section (EWS). Alternatively, the petitioner prays that the impugned advertisement for DHJS Exam-2022 be set aside.
2. Respondent no.2 (hereafter ‘the DHC’) had issued the impugned advertisement dated 23.02.2022, inviting online applications from eligible candidates for filling up 45 (forty-five) vacancies (43 existing vacancies and 02 anticipated vacancies) by way of a direct recruitment to the Delhi Higher Judicial Service (DHJS). The selection for the candidates involved three successive stages. In the first stage, the eligible candidates were required to appear and clear the Delhi Higher Judicial Service Preliminary Examination. The said examination entailed answering objective type questions with 25% negative marking. The candidates qualifying the said preliminary examination would be eligible to appear for the Delhi Higher Judicial Service Mains Examination (Written) (hereafter ‘the DHJS Examination (Mains)’), and those candidates, who qualified the said examination, were admitted for the viva voce test.
3. The break-up of the vacancies, as specified in the impugned notice, is set out below:
| Category | Break up of Vacancies | Total No. of | |
|
| Existing | Anticipated | vacancies |
| General | 30 | 02 | 32 |
| SC | 07 | 00 | 07 |
| ST | 06 | 00 | 06 |
| TOTAL | 43 | 02 | 45 |
Note I: Out of the aforesaid 45 vacancies, the reservation for PwD candidates shall be as follows:
| Category | Vacancies |
| PwD (Blind and Low Vision) | 02 |
| PwD (Specific Learning Disability) and PwD (Multiple Disabilities involving Blindness and low vision, one arm, one leg, both legs, leprosy cured, dwarfism and acid attack and specific learning) | 01 |
| Total | 03” |
4. The petitioner qualified the Delhi Higher Judicial Service Preliminary Examination, which was held on 23.04.2022. He was admitted to the DHJS Examination (Mains).
5. The results of the DHJS Examination (Mains) were declared on 26.08.2022 and the petitioner cleared the said examination which was held on 14.05.2022 and 15.05.2022.
6. After the said results were declared, one of the unsuccessful candidates filed a writ petition [being W.P.(C) 739/2022 captioned Anil Kumar v. High Court of Delhi] before the Supreme Court, which was dismissed by an order dated 16.09.2022. Thereafter, the said petitioner (Anil Kumar) filed a petition before this Court [being W.P.(C) 14252/2022] seeking enhancement/revaluation of the marks awarded in one of the papers of DHJS Examination (Mains). Some of the other candidates also filed petitions, inter alia, seeking revaluation of the marks awarded in DHJS Examination (Mains). These petitions were dismissed as well.
7. The unsuccessful candidates made a representation to the DHC, which were considered by the DHC and additional 1.5 marks (1 mark in Law Paper-III and 0.5 mark in General Knowledge and Language) were awarded to all the candidates who had appeared in DHJS Examination (Mains). In view of the additional marks awarded to all candidates, three candidates, who had not qualified earlier, also qualified for being admitted to viva voce.
8. The petitioner and the other qualified candidates appeared for the interview (v
Kulwinder Pal Singh and Anr. v. State of Punjab and Ors.: (2016) 6 SCC 532
Ramesh Chandra Shah and Ors. v. Anil Joshi and Ors.: (2013) 11 SCC 309
S.N. Aggarwal v. Union of India and Ors.: 45 (1991) DLT 609 (DB)
The main legal point established in the judgment is that the reservation for PWD candidates is horizontal and candidates must be appointed against vacancies exclusively earmarked for them.
Employees appointed in reserved categories prior to state bifurcation are entitled to claim reservation benefits in the successor state, and arbitrary rejection of their candidatures violates constit....
10% EWS reservation applies only to current vacancies, excluding backlog SC/ST/OBC vacancies treated as separate class under Article 16(4B), not total vacancies.
(1) Appointments cannot be made over and above clear and anticipated vacancies which have been advertised even though Public Service Commission may have prepared a longer merit list than it was requi....
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