(1.) THIS is a petition under Articles 226 and 227 of the Constitution of India, praying for a writ of mandamus directing the State of Madhya Pradesh to appoint the petitioner to the post of civil Judge, Class II, in the M. P. State Judicial Service and a writ of quo warranto quashing the appointment of respondents 4 to 14 as civil Judges as also a writ of mandamus about giving the petitioner his seniority in the merit list.
(2.) BY a notion, dated 3-4-1970 (Petitioner's Annexure A), the Public Service Commission invited applications for the posts of twenty-five civil Judges or more. In the notification it was stated that selection would be made in accordance with Madhya Pradesh State Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955. Accordingly, the Public service Commission held interviews and prepared a list in order of merit (Petitioner's Annexure B, dated 2-9-1971 ). It was decided by the State Government that as per the requirements specified by the High Court, seventy four appointments to the posts of civil Judges would be made. The Public Service Commission had prepared the list in order of merit. Candidates Nos. 1 to 50, who stood in the interview in order of merit were straight-way selected for appointment. The Public Service Commission had also prepared a reserved list in order of merit. The petitioner's name stood at serial No. 26 in the said reserved list in order of merit. The State Government appointed candidates Nos. 1 to 17, out of the reserved list in order of merit. For the sake of convenience, we shall describe the said list as merit list and reserved list respectively. As regards the remaining 7 candidates, the State Government did not appoint them according" to the serial numbers in order of merit, but appointed respondents 4 to 10, who were members of the Schedule Castes and who in the reserved list stand at serial nos. 44 to 50. Respondent 10, Vijaysingh's name was directed to be struck out as per the order of this Court, dated 24-7-1974. Consequently, the petitioner's main grievance is against the appointment of respondents 4 to 9, who stood last in the reserved list in order of merit and who inspite of that fact, were appointed civil Judges. The petitioner's contention is that in the merit list 12 members of the Schedule Castes and Scheduled Tribes had already been included and, therefore, there was no reason to appoint more members from that category. As regards reservation of seats, the State Government had fixed the quota of three seats for Scheduled Castes and eight seats for Scheduled Tribes totalling II out of 25 seats. That was the original plan of the State Government. If, 74 appointments were actually made, the quota of reserved seats for Scheduled castes and Scheduled Tribes would be 9 and 24 respectively-totalling 33. Not 75, but 74 candidates were ultimately appointed and, therefore, one seat out of the reserved seat would have to be reduced, Therefore the quota for Scheduled Castes and Scheduled Tribes would be 8 and 24 or 9 and 23 respectively, totalling 32. As 12 candidates belonging to Scheduled Castes and Scheduled tribes had already come up successfully in the merit list of first 50 candidates, the State Government thought of appointing the remaining candidates from the reserved list. However, it appears that the State Government could not get any one out of the Scheduled Tribes and consequently, 7 candidates, who stood in the bottom in the reserved list, were appointed in those seats reserved for scheduled Castes and Scheduled Tribes. One of the contentions raised on behalf of the petitioner is that reserved seats for the Scheduled Caste s and Scheduled Tribes cannot be treated as inter-changeable and the most, nine candidates belonging to the Scheduled Castes should have been appointed. But eight members of the Scheduled Castes and four members of the Scheduled Tribes have been appointed out of the merit list and seven candidates belonging to the scheduled Castes have been appointed out of the reserved seat. Thus, the seats given to the members of the Scheduled Castes total 15 ; while those given to the scheduled Tribes total 4. As regards this contention is concerned, we may observe that there is nothing wrong in making reserved seats for Scheduled castes and reserved seats for Scheduled Tribes inter-changeable if the State government is unable to get candidates for any particular category. Such reserved seats can be inter-changeable and at any rate, candidates from the non-reserved seats cannot claim any of those reserved seats. Thus, it is immaterial whether out of the reserved seats, either Scheduled Castes or Scheduled Tribes got more quota than is actually reserved for them. This may happen on account of candidates not being available and it is members of the reserved seats category alone, who might be able to raise a grievance in that behalf. Such a grievance cannot be raised by a member belonging to non reserved seats. In fact the total number of reserved seats for Scheduled Castes and Scheduled Tribes would be 32; while actually 19 candidates only (15 belonging to Scheduled Castes and 4 belonging to Scheduled Tribes) were appointed by the State Government. Thus, the quota of reserved seats for Scheduled Castes and Scheduled Tribes was much below the number fixed and in no case, was it exceeded while making the appointments. We are of the opinion that the petitioner can have no grievvance in this behalf.
(3.) THE learned counsel for the petitioner urged that when the Public service Commission had made lists in order of merit, the State Government was bound to appoint candidates in order of merit and appointments of candidates, who stand at the bottom of the reserved list, was unconstitutional and illegal. In this connection we might observe that Article 16 (4) of the Constitution of india permits reservation of seats in favour of any backward class of citizens. Sub-clause (4) of Article 16 provides that nothing in this Article shall prevent the State from making any provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Moreover, Article 335 of the Constitution provides as under: