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Supreme Court of India
Sunil Rathee vs The State Of Haryana on 23 July, 2020Author: Aniruddha Bose
Bench: Sanjay Kishan Kaul, Ajay Rastogi, Aniruddha Bose
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(Non-Reportable)
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NO. 2592 OF 2019
Sunil Rathee & Ors. ..PETITIONERS
VERSUS
The State of Haryana & Ors. ..RESPONDENTS
J U D G M E N T
ANIRUDDHA BOSE, J.
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
Signature Not Verified
Digitally signed by
ASHA SUNDRIYAL
writ petition, under challenge is a notification issued by the State of
Date: 2020.07.23
18:56:12 IST
Reason:
Haryana bearing no. 733 SW (1|)- 2013 dated 27th September 2013
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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
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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
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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.”
4. It has been urged on behalf of the State respondents that the
petitioners ought to wait for the judgment in the Civil Appeals instead
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of skipping one layer of the judicial hierarchy. It has also been argued
on behalf of the State that the petitioners had approached the High
Court after 4 years of issue of the notification dated 27 th September
2013. The other authority relied upon by the State is the case of
Lunawat Construction vs. Union of India [2019(5) SCC 467]. In
this case, it has been held that no prejudice would be caused to the
parties if there is adjudication of the matter by the High Court at the
first instance instead of the Supreme Court. But that observation was
made in a writ petition filed under Article 32 of the Constitution. That
authority does not assist the State respondents. There are three
applications for impleadment by Saurabh Nagwan (I.A. No. 10146 of
2020), Shrikant (I.A. No. 49252 of 2020) and Deepak (I.A. No. 49255
of 2020). They claim to be amongst the successful candidates from
the EBPG category for the said posts and they make this claim on the
basis of result declared on 8th March, 2019 by the Commission in
respect of the same selection process. On their behalf, it has been
argued that they have vital interest in the subject matter of this
proceeding as their engagement to the posts is held up because of the
pendency of the present transfer petition. They have sought to
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distinguish the legal position between the writ petition of which
transfer is sought for vis-à-vis the legal and factual basis of Civil
Appeal Nos. 9546-9549 of 2016 pending before this Court. It has
been pointed out on their behalf that the Gujarat High Court has
decided the matter prior to introduction of Article 15 (6) and Article
16 (6) to the Constitution of India by way of Constitution (One
Hundred and Third Amendment) Act, 2019, enabling the State to
provide for 10% reservation of economically weaker sections of the
citizens.
5. It has also been urged by the intervenors that in course of
hearing of the writ petitions before the High Court, the learned
Advocate General of Haryana on 16th May 2019 made a statement
that status-quo in respect of appointment in EBPG category would be
maintained by the State as it existed on that date till the next date of
listing, which was 12th July, 2019. It appears that the same position
still continues. The intervenors also seek to distinguish the factual
basis of pending appeal from that of the subject writ petition in that
the 10% reservation made by the Gujarat Ordinance and the Haryana
notification were on the basis of recommendations from different
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bodies and the case from the State of Gujarat had been finally decided
by the High Court whereas the aforesaid writ petition is still pending.
It was also outlined by the intervenors that the writ petitioners had
participated in the selection process and on being unsuccessful, they
were challenging the selection process. On this count, certain
authority has been cited. But these are really submissions on merit. So
far as the plea of the petitioners before this Court in the present
proceeding is concerned, such submissions on merit are not of much
relevance.
6. The provision of Article 139A of the Constitution relating to
withdrawal of a case from a High Court to this Court on the ground of
pendency before this Court of a case involving same or similar
questions of law contemplates fulfilment of two conditions. First, in
the case pending before this Court, the questions of law involved
ought to be the same or substantially the same as those involved in the
case in the High Court, the withdrawal of which can be asked for.
Secondly, this Court, while exercising the jurisdiction vested in it
under Article 139A of the Constitution must be satisfied that such
questions are substantial questions of general importance. Such
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satisfaction can be on this Court’s own motion, on an application
made by the Attorney General or on the basis of an application made
by a party to any such case. One of the key points involved in the
appeal of the State of Gujarat in the case of Ms Dulari Mahesh
Basagre & Anr (supra) is as to whether the Ordinance involved
therein is contrary to the ratio laid down by this Court in the case of
Indra Sawhney (supra) or not. The writ petition before the Punjab
and Haryana High Court is also anchored on the same authority, in
assailing the notification of 27th September 2013. I am also satisfied
that the writ petition pending before the Punjab and Haryana High
Court as also the appeal in the case of State of Gujarat (supra)
involve substantially the same questions of law and these questions
are of general importance. The fact that the Gujarat Ordinance was
promulgated before coming into effect of the Constitution (One
Hundred and Third amendment) Act, 2019 does not have significant
distinguishing impact so far as the questions forming the basis of the
said Civil Appeal and the Writ Petition pending before the Punjab and
Haryana High Court are concerned. I have already referred to the key
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point forming the subject of controversy in the said Appeal and the
Writ Petition.
7. The decision in the case of Sri Selvaganapathy (supra) was
cited by the State respondents in support of their contention that the
pending writ proceedings could wait for the final outcome of the Civil
Appeal. On behalf of the petitioners, on the other hand, the case of
L.K. Venkat vs. Union of India [2012 (5) SCC 292] was referred to.
This was a case arising out of a Writ Petition filed in the Madras High
Court for quashing of order of rejection of clemency petition by the
President. In that case, one of the grounds for seeking transfer was
that the questions raised in the writ petition was identical to the
question raised in two other cases pending before this Court, being
Writ Petition (Criminal) D. No. 16039 of 2011 and S.L.P (Criminal)
No. 1105 of 2012. This Court found in the case of L.K. Venkat
(supra) that the common question was whether long delay in deciding
a mercy petition entitled the convict to seek commutation of death
sentence or not. The petition was allowed by this Court.
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8. Article 139A vests this Court with jurisdiction to direct transfer
or withdrawal of a case pending in a High Court to this Court on two
grounds, to which I have referred earlier. On satisfaction of these
conditions, this Court can make direction in exercise of its discretion
for withdrawing the case for disposal of the same by itself. The
manner in which such discretion would be exercised would vary from
case to case. The decision of this Court in Sri Selvaganapathy and
Co. (supra) cannot be held to have laid down any absolute proposition
of law guiding transfer or withdrawal of a case from a High Court to
this Court. The course mandated by this Court in the case of Sri
Selvaganapathy and Co. (supra) was in the facts of that particular
case. So far as the three intervention applications are concerned, in
dealing with a petition under Article 139A of the Constitution of
India, I do not find any reason to allow the applicants’ plea for being
impleaded. I do not see any possibility of their interest being
prejudiced if I direct withdrawal of the writ petition from the Punjab
and Haryana High Court to this Court. Once the writ petition is
withdrawn or transferred to this Court, they can always come back
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with similar plea for impleadment. All the three applications for
intervention shall accordingly stand dismissed.
9. The points involved in the said Civil Appeal and the Writ
Petition pending in the High Court of Punjab and Haryana require
adjudication of substantially the same questions of law. These
questions have arisen in two different States and in my opinion these
are substantial questions of general importance.
10. I accordingly direct withdrawal of CWP No. 7607 of 2019
(Sunil Rathee and Ors. Vs. State of Haryana & Ors.) pending in the
High Court of Punjab and Haryana to this Court for disposal of the
said Writ Petition.
11. Let the records of the said case be transferred to the Registry of
this Court by the Registrar General, High Court of Punjab and
Haryana forthwith. On receiving the records, the same shall be placed
before the Hon’ble Bench before hearing Civil appeal No. 9546-49 of
2016 for appropriate direction. The Transfer Petition stands allowed.
12. All other connected applications shall also stand disposed of in
the same terms.
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13. There shall be no order as to costs.
…………………………………………J.
(Aniruddha Bose)
New Delhi
Dated: 23rd July, 2020
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