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CASE NO.: Appeal (civil)  3521 of 2007

PETITIONER: Sonia  

RESPONDENT: Oriental Insurance Co. Ltd. & Ors

DATE OF JUDGMENT: 07/08/2007

BENCH: TARUN CHATTERJEE & P.K.BALASUBRAMANYAN

JUDGMENT: JUDGMENT [Arising out of SLP [C] No.22070 of 2004]

    TARUN CHATTERJEE, J.

1.      Leave granted.

2.      This appeal is directed against the Judgment and  order dated 23rd August, 2004 passed by a Division  Bench of the High Court of Punjab and Haryana at  Chandigarh whereby the High Court dismissed a writ  application filed by the appellant only on the ground that  no legal right of the appellant had been infringed. 3.      A writ petition was filed by the appellant for a direction  upon the respondent to consider the case of the appellant  for promotion to the cadre of Assistant Administrative  Officer (AAO) against the vacancy reserved for Scheduled  Tribe candidates.  A further direction was also prayed by  the appellant to the extent that the respondents should  keep one vacancy reserved for the appellant who had  competed and was found successful as a candidate from  Scheduled Caste reserved category and for other incidental  reliefs.

4.      The facts of the present case may briefly be stated as  follows:

5.      The appellant who is a Scheduled Caste by birth has  been working as Assistant [T] in the Oriental Insurance  Company on and from 2nd January, 1997.  Applications  were invited from eligible and desirous employees for  appointment to the post of Assistant Administrative Officer  in terms of the promotional policy of the respondents.   There are two modes of appointment to the post of  Assistant Administrative Officer, namely, (i) promotion from  the departmental candidates; and (ii) by direct recruitment  through competitive examination.  In the said promotional  policy, pre-examination training to Scheduled  Caste/Scheduled Tribes/Other Backward Classes  candidates who are eligible to appear in the aforesaid test  has also been allowed.  It is also evident from the policy  that if no eligible candidate is available in a particular  category, an exchange of vacancy between Scheduled  Caste and Scheduled Tribes categories can be allowed to  the extent of non-availability of eligible candidates in a  particular category.  Advertisement was published on 30th  October, 2003 and accordingly the appellant applied on the  basis of the said advertisement to the post of Assistant  Administrative Officer.  There were in all five vacancies out

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of which one was reserved for candidates belonging to the  Scheduled Tribes category and both Scheduled Caste and  Scheduled Tribes candidates were eligible to compete for  this reserved vacancy.  The appellant was permitted to  undergo a pre-examination training between 1st December,  2003 to 19th December, 2003 which was imparted to  Scheduled Caste and Scheduled Tribes employees in  accordance with the aforesaid promotional policy.  The  appellant was permitted to appear for the competitive  examination held on     21st  December, 2003 against the  vacancy reserved for candidates belonging to Scheduled  Tribes category.  The name of the appellant appeared at  Sl.No.23 in the list of successful candidates.  Since her  name had appeared in the list of successful candidates, the  appellant claimed that she was entitled to be called for  interview and considered for selection. A notice dated 27th  February, 2004 was issued by the respondents that no  exchange of vacancies between Scheduled Caste and  Scheduled Tribes categories could be allowed even if no  eligible candidate was available under either of the two  categories in view of OM No.36012/17/2002-Estt.(Res)  dated         6th November, 2003, clarifying that it was not  permissible to fill a post reserved for Scheduled Tribes by a  Scheduled Caste candidate or vice versa by exchange of  vacancies between the two. Feeling aggrieved by refusal of  the authorities to empanel the appellant for the interview,  the aforesaid writ petition was filed before the High Court  which, as noted herein earlier, was dismissed with the  observation that no legal right of the appellant had been  infringed for not empanelling her as a successful candidate  to appear before the Interview Board set up by the  respondents.

6.      It is this order of the High Court which the appellant  has challenged before this Court by way of a special leave  petition in respect of which leave has already been granted.

7.      We have heard the learned counsel appearing for the  parties and examined the judgment of the High Court and  other materials on record.  A perusal of the order of the  High Court impugned in this appeal shows that the writ  petition of the appellant as noted herein above, was  dismissed solely on the ground that in view of OM dated 6th  November, 2003, the exchange of vacancies between  Scheduled Caste and Scheduled Tribes categories was not  permissible.  Before we take up this question for our  decision, we may note that the respondents on 30th  October, 2003, notified the number of vacancies required to  be filled under various categories.  It is also evident from  the advertisement that out of five vacancies, four were  unreserved and one was reserved for a candidate  belonging to Scheduled Tribes.  In this advertisement, the  respondents specifically mentioned that in case no eligible  candidates are available in a particular reserved category,  i.e., Scheduled Caste and Scheduled Tribes, exchange of  vacancies between these two categories was permitted.  It  would be necessary for us to reproduce the portion of the  Promotional Policy regarding reservation for Scheduled  Caste and Scheduled Tribes candidates: \023As regards  exchange of vacancies between SC/ST categories in case  no eligible candidate is available in a particular category  such exchange is allowed between these two categories to  the extent of non-availability of eligible candidates in a  particular category.\024  From the above, it cannot be said to  be in dispute that when no eligible candidate is available in

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a particular category, exchange of vacancies between  Scheduled Caste and Scheduled Tribes categories can be  allowed to the extent of non availability of eligible candidate  in a particular category.  It may also, at this stage, be noted  that the Office Memorandum dated 6th November, 2003 by  which permission of exchange of reservation between  Scheduled Caste and Scheduled Tribes was withdrawn,  was issued at a time when candidates including the  appellant had already acted on the basis of the  advertisement dated 30th October, 2003 in which  permission was granted for exchange of reservation  between Scheduled Caste and Scheduled Tribes.  Even on  a plain reading of clause [6] of the Office Memorandum  dated 6th November, 2003, it can be seen that in case  some posts reserved for Scheduled Tribes might have  been filled by Scheduled Caste candidates by exchange of  reservation or vice versa before issuance of the said Office  Memorandum, such cases need not be re-opened.  This  clause would clearly show that the posts reserved for  Scheduled Tribes which have been filled by Scheduled  Caste candidates by exchange of reservation before  issuance of this Office Memorandum need not be  disturbed. As noted herein earlier, applications were invited  by the respondents on   30th October, 2003 whereas the  Office Memorandum withdrawing permission of exchange  of vacancies between Scheduled Caste and Scheduled  Tribes candidates was issued on     6th November, 2003.   Let us now, therefore, consider whether this Office  Memorandum could have a retrospective effect or not.  In  our view, the Office Memorandum dated 6th November,  2003 cannot have or could not have retrospective effect as  the appellant would be governed or covered by the date on  which applications were invited to fill up the posts of  Assistant Administrative Officer, i.e., on       30th October ,  2003 and also for the reason that no retrospective effect  has been given to the said Office Memorandum.  In N.T.  Devin Katti vs. Karnataka Public Service Commission [  1990[3] SCC 157 ] this Court has held that where selection  process has been initiated by issuing an advertisement  inviting applications, selection should normally be regulated  by the rule or order then prevalent and also when  advertisement expressly states that the appointment shall  be made in accordance with the existing rule or order,   subsequent amendment in the existing rule or order will not  affect the pending selection process unless contrary  intention is expressly or impliedly indicated.  In the present  case, admittedly, while inviting applications, respondents  advertised the number of vacancies required to be filled  under various categories.  Notice inviting application also  mentioned that if under a particular category an eligible  candidate was not available, exchange of vacancies  between the two categories was permitted.  The appellant  acted on the basis of the aforesaid advertisement which  permitted her to apply for the post and in fact she was  permitted to sit in the examination and was subsequently  also found to be a successful candidate in the said  examination.  Therefore, in view of the aforesaid decision in  the case of N.T. Devin Katti vs. Karnataka Public Service  Commission [ 1990[3] SCC 157 ], we are of the view that  OM dated                    6th November, 2003 cannot have any  retrospective effect and the date on which the applications  were invited should be the relevant date for consideration  whether exchange of Scheduled Caste and Scheduled  Tribes candidates was permissible.  The decision in the  case of N.T. Devin Katti vs. Karnataka Public Service

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Commission [ 1990[3] SCC 157 ]has also been echoed by  a decision of this Court in the case of P. Mahendran and  Ors. vs. State of Karnataka and Ors.         [ 1990 [1] SCC  411 ].  In any view of the matter, law is well settled that an  Office Memorandum cannot have a retrospective effect  unless and until intention of the authorities to make it as  such is revealed expressly or by necessary implication in  the Office Memorandum.  On the other hand from the  Office Memorandum, as noted herein above, we find that  the candidates who had already been selected, the case of  such candidates would not be re-opened.  A close  examination of clause [6] of the Office Memorandum dated             6th November, 2003, in our view, would show that it does  not speak about the pending process of selection.  It only  speaks about the appointments already made and for  which a retrospective effect has not been given.  Therefore,  in view of the principles laid down by the aforesaid two  decisions of this Court, the Office Memorandum dated 6th  November, 2003, in our view, would not apply to the  selection process which started before the said Office  Memorandum was issued by the respondents.  It may be  repeated at this stage that the appellant was permitted to  appear for the examination for the post of Assistant  Administrative Officer in respect of which she was declared  successful on 17th February, 2004 well after the Office  Memorandum was issued by the respondents.

8.      In view of the above, we are of the view that the High  Court was not justified in dismissing the writ petition of the  appellant only on the ground that in view of Office  Memorandum dated                6th November, 2003, no legal  right of the appellant was infringed.  Since, we have already  held that the Office Memorandum will not be applicable in  the case of the appellant and to the pending process of  selection, we are of the view that the appellant would be  entitled to be empanelled to appear before the Interview  Board for selection to the post of Assistant Administrative  Officer.

9.      For the above reasons, we set aside the Judgment of  the High Court and allow this appeal.  The respondents are  directed to call the appellant for interview before the  Interview Board for selection to the post of Assistant  Administrative Officer and if she is selected by the Interview  Board, she should be promoted or appointed to the post of  Assistant Administrative Officer.  There will, however, be no  order as to costs.