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Sonia v. Oriental Insurance Co. Ltd. And Others
Factual and Procedural Background
The appellant, a Scheduled Caste employee of Oriental Insurance Company working as an Assistant (T) since 2 January 1997, sought promotion to the post of Assistant Administrative Officer (AAO). An advertisement dated 30 October 2003 announced five vacancies, one of which was reserved for Scheduled Tribe (ST) candidates. The advertisement expressly permitted an exchange of vacancies between Scheduled Caste (SC) and ST categories if no eligible candidate was available in a particular category. Relying on this policy, the appellant applied, underwent pre-examination training, sat for the competitive examination on 21 December 2003, and was declared successful.
On 6 November 2003, after the advertisement but before interviews, the Government issued an Office Memorandum (OM) prohibiting such exchanges. Citing this OM, the employer refused to call the appellant for interview. The appellant filed a writ petition in the High Court of Punjab and Haryana, which was dismissed on 23 August 2004 for want of an infringed legal right. The present appeal challenges that dismissal; leave was granted by the Supreme Court.
Legal Issues Presented
- Whether the Office Memorandum dated 6 November 2003, which withdrew permission to exchange SC/ST vacancies, could retrospectively nullify the exchange provision contained in the advertisement dated 30 October 2003.
- Consequently, whether the appellant had a enforceable legal right to be considered for the ST-reserved vacancy and to be called for interview.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| N.T. Devin Katti v. Karnataka Public Service Commission (1990) 3 SCC 157; 1990 14 ATC 688 | Selection processes are governed by the rules/orders in force at the time of the advertisement; subsequent amendments do not affect pending selections unless expressly intended. | The Court applied this principle to hold that the 6-11-2003 OM could not retrospectively affect the appellant’s candidacy, because the selection process had commenced under the earlier policy permitting exchange. |
| P. Mahendran v. State of Karnataka (1990) 1 SCC 411; 1990 12 ATC 727 | Affirmed the non-retrospective application of later amendments to ongoing selection processes. | Used to reinforce that the OM lacked retrospective effect and could not be invoked to bar the appellant’s consideration. |
Court's Reasoning and Analysis
1. The Supreme Court noted that the advertisement of 30 October 2003 formed the legal basis of the recruitment process and expressly allowed exchange of SC/ST vacancies if a category lacked eligible candidates.
2. The OM dated 6 November 2003 was issued after candidates, including the appellant, had acted upon the advertisement and entered the examination process. Clause 6 of the OM itself stated that appointments already made under the earlier policy would not be reopened, indicating no express retrospective intent.
3. Citing N.T. Devin Katti and P. Mahendran, the Court reiterated that, absent explicit language, subsequent policy changes cannot retrospectively alter an ongoing selection process.
4. Because the appellant was successful in the written examination conducted under the advertisement’s terms, denying her an interview solely on the basis of the later OM infringed her accrued right to consideration.
5. The High Court erred in concluding that no legal right was violated; the appellant’s entitlement arose from the advertisement and the promotional policy then in force.
Holding and Implications
Appeal Allowed; High Court judgment set aside.
The respondents are directed to call the appellant for interview for the post of Assistant Administrative Officer. If selected, she must be promoted/appointed accordingly. No costs were awarded.
The decision restores the primacy of recruitment rules as they stand on the date of advertisement, confirming that later administrative instructions lacking explicit retrospective effect cannot disrupt ongoing selection processes. No new legal doctrine was created, but existing principles on non-retrospectivity were reinforced.
Tarun Chatterjee, J.— Leave granted.
2. This appeal is directed against the judgment and order dated 23-8-2004 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:
The appellant who is a Scheduled Caste by birth has been working as Assistant (T) in Oriental Insurance Company on and from 2-1-1997. 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 Tribe categories can be allowed to the extent of non-availability of eligible candidates in a particular category. Advertisement was published on 30-10-2003 and accordingly the appellant applied on the basis of the said advertisement to the post of Assistant Administrative Officer.
5. There were in all five vacancies out of which one was reserved for candidates belonging to the Scheduled Tribe 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 1-12-2003 to 19-12-2003 which was imparted to Scheduled Caste and Scheduled Tribe employees in accordance with the aforesaid promotional policy. The appellant was permitted to appear for the competitive examination held on 21-12-2003 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 27-2-2004 was issued by the respondents that no exchange of vacancies between Scheduled Caste and Scheduled Tribe 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 6-11-2003, 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.
6. 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 hereinearlier, 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. 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 hereinabove, was dismissed solely on the ground that in view of OM dated 6-11-2003, the exchange of vacancies between Scheduled Caste and Scheduled Tribe categories was not permissible. Before we take up this question for our decision, we may note that the respondents on 30-10-2003, 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:
“As 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.”
From the above, it cannot be said to be in dispute that when no eligible candidate is available in a particular category, exchange of vacancies between Scheduled Caste and Scheduled Tribe categories can be allowed to the extent of non-availability of eligible candidate in a particular category.
8. It may also, at this stage, be noted that the office memorandum dated 6-11-2003 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 30-10-2003 in which permission was granted for exchange of reservation between Scheduled Caste and Scheduled Tribes.
9. Even on a plain reading of Clause (6) of the office memorandum dated 6-11-2003, 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 reopened. 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 hereinearlier, applications were invited by the respondents on 30-10-2003 whereas the office memorandum withdrawing permission of exchange of vacancies between Scheduled Caste and Scheduled Tribes candidates was issued on 6-11-2003. Let us now, therefore, consider whether this office memorandum could have a retrospective effect or not. In our view, the office memorandum dated 6-11-2003 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 30-10-2003 and also for the reason that no retrospective effect has been given to the said office memorandum.
10. In N.T Devin Katti v. Karnataka Public Service Commission (1990) 3 SCC 157, (1990) 14 ATC 688 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.
11. In the present case, admittedly, while inviting applications, the 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 N.T Devin Katti v. Karnataka Public Service Commission (1990) 3 SCC 157, (1990) 14 ATC 688 we are of the view that OM dated 6-11-2003 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 N.T Devin Katti v. Karnataka Public Service Commission (1990) 3 SCC 157, (1990) 14 ATC 688 has also been echoed by a decision of this Court in P. Mahendran v. State of Karnataka (1990) 1 SCC 411, (1990) 12 ATC 727. 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 hereinabove, we find that the candidates who had already been selected, the case of such candidates would not be reopened.
12. A close examination of Clause (6) of the office memorandum dated 6-11-2003, 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 6-11-2003, 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 17-2-2004 well after the office memorandum was issued by the respondents.
13. 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 6-11-2003, 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.
14. 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.
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