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Wednesday, October 21, 2015

whether the Appellants had the locus standi to challenge the mode of recruitment of the Respondents. The High Court has held that since they were not of the reserved class, they did not have the locus standi to challenge mode of recruitment of the Respondents who were of the reserved class, on the principle that unequals cannot be treated as equals. While we accept the principle itself, we do not find it pertinent to the factual scenario before us. The unrefuted factual position is that by virtue of their retrospective regularization, several of the Respondents gained seniority over the Appellants. In light of the direct impact on them, the Appellants would have the locus standi to challenge the validity of the appointment of the Respondents. However, for the reasons discussed above, the challenge while allowed is not successful.= In light of the fact that the Respondents were appointed in a legal and legitimate manner, the Merit List should not have been disturbed to protect the rights of the OPSC recruits. It is certainly arguable that there was no justification to destabilize seniority by departing from the general principle of service law that seniority is determined by the date of joining. However, this contention has not been raised before us, so we shall refrain from any further discussion on the matter, which hereafter stands closed for not having been pressed till date. 18 We see it fit to uphold the impugned Judgment. We dismiss the Appeals before us, but with no order as to costs.


                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                     CIVIL APPEAL NOs.6305-6307 OF 2009

PRATAP KISHORE PANDA                                    .. APPELLANT
                                   VERSUS
AGNI CHARAN DAS                                         .. RESPONDENT

                               J U D G M E N T
VIKRAMAJIT SEN, J.

1     The Orissa Public Service Commission (OPSC)  issued  an  advertisement
for a Competitive Examination (1974-1975) for recruitment  of  approximately
300 persons, of which 16% were reserved for  Schedule  Castes  and  24%  for
Schedule Tribes.  The OPSC recommended names of  714  successful  candidates
which included 20 in the reserved categories, which  were  approved  by  the
Home Department on 24.11.1977.  Since a substantially inadequate  number  of
candidates in the reserved categories had been recommended by the OPSC,  the
State Government decided to fill these remaining seats on an ad  hoc  basis.
Therefore, 403 reserved candidates including the Respondents were  appointed
in four  batches  between  15.5.1978  and  30.3.1980.  The  names  of  these
candidates had been sponsored by  the  Employment  Exchange  and  they  were
found suitable by a duly constituted Selection Committee  which  interviewed
them. However, they were appointed with the stipulation that their  services
would be terminated as soon as reserved  candidates  selected  by  the  OPSC
became available.
2     On 31.10.1979, the State Government  amended  Rule  3  of  the  Orissa
Ministerial Service (Method of Recruitment  and  Conditions  of  Service  of
Lower Division Assistant in the Office of Department of Secretariat)  Rules,
1951 empowering the OPSC to recruit candidates for the service by  means  of
a  competitive  examination.  Subsequently,  vide  State  Resolution   dated
25.5.1982, the ad hoc reserved candidates recruited  between  15.5.1978  and
31.10.1979, including the Respondents, were deemed as regular  appointments.
52 other reserved candidates who were appointed after  the  OMS  Rules  1951
amendment was effected were deemed to  be  employed  on  a  temporary  basis
until a fresh competitive examination was held under the amended Rule  3  of
the OMS Rules 1951.  Vide  another  State  Resolution  dated  4.3.1983,  the
regularization of the ad hoc appointees affected by the previous  resolution
was given retrospective effect from  the  date  of  initial  appointment  as
Junior Assistants, with the stipulation that in  terms  of  seniority,  they
were always to be placed below the OPSC  selected  candidates  appointed  on
the same day. Promotions were made in accordance  with  the  gradation  list
prepared by the government pursuant to this resolution dated  4.3.1983.   As
a  result  of  this,  145  reserved  category  appointees   (including   the
Respondents) who  had  not  been  recruited  by  the  OPSC  but  through  an
alternate method of regular recruitment became  senior  to  the  Appellants,
who are OPSC appointed general category candidates.
3     Some of the OPSC selected reserved category candidates challenged  the
fixation of their seniority in the cadre  of  Lower  Division  Assistant  as
well as the promotion of some of the regularized candidates to the  rank  of
Senior Assistant in consequence of the alleged wrong fixation of  seniority.
 These proceedings were transferred to the Orissa  Administrative  Tribunal,
which, on 16.8.1989,  declared  the  fixation  of  inter  se  seniority  and
promotions of regularized candidates over OPSC  appointed  recruits  illegal
and  contrary  to  law.  The  Tribunal  took  note  of  the  fact  that  the
petitioners before it were appointed before the  regularized  candidates  as
well as the fact that as per the Resolution dated  4.3.1983,  the  seniority
of the former was to be above the regularized candidates  appointed  on  the
same day.  The Tribunal held that the gradation list made in consequence  of
the Government Resolution dated 25.5.1982 was illegal, and  the  petitioners
were entitled  to  consideration  for  their  promotion  in  view  of  their
seniority.
4     Some others of the OPSC  selected  general  category  candidates  also
challenged the fixation of seniority.  The  Orissa  Administrative  Tribunal
held that a combined reading of Rule 3 of the OMS  Rules  1951  and  Section
9(4) of the O.R.V. Act makes  it  clear  that  if  a  sufficient  number  of
candidates belonging to the SC/ST candidates  are  not  available,  a  fresh
recruitment test is required and  that  no  other  mode  of  recruitment  is
provided for.  Furthermore, it was of the opinion that  services  cannot  be
regularized by a Resolution, and accordingly recruitment made by  the  State
Government contrary to the OMS Rules  1951  cannot  be  upheld.  Vide  order
dated 23.11.1996, the Tribunal held that  irregularly  appointed  candidates
cannot have seniority over regularly recruited candidates, and directed  the
Secretary, Home Department to reexamine and  determine  seniority  according
to law.
5     Subsequently, the Government re-examined the question  of  appointment
of  Junior  Assistants  and  determined  the  seniority   by   placing   the
Respondents  and  other  reserved  candidates  selected  by  the   Selection
Committee below the OPSC selected candidates, in  the  rank  of  Junior  and
Senior Assistants.
6      On  30.5.2001,  a  Government  Order  was  passed  calling  for   the
Respondents’ CCRs for consideration of their further promotion to  the  rank
of S.O. (Level II). The general category OPSC recruits filed an  application
seeking  to  quash  this  Order.  The  Orissa  Administrative  Tribunal,  on
21.10.2002, quashed the Order dated  30.5.2001  insofar  as  it  related  to
calling for service particulars and CCRs for  consideration  for  promotion.
It directed that the Respondents’ names be removed from  the  active  common
gradation list and that the OPSC  candidates  including  the  Appellants  be
considered instead, if they had come within the zone  of  consideration  for
promotion.
7     Aggrieved  by  this  order,  three  groups  of  regularized  Selection
Committee appointees filed writ petitions before the High  Court.  The  High
Court, vide common impugned judgment dated 8.8.2008, allowed all three  writ
petitions. The Tribunal’s order  dated  21.10.02  was  set  aside,  and  the
Resolutions dated 25.5.1982 and  4.3.1983  were  upheld,  albeit  with  some
modifications. The High Court observed that Rule 30 of the  OMS  Rules  1951
postulated that  notwithstanding  anything  contained  in  the  said  Rules,
reservation of vacancies for direct recruitment are  to  be  filled  in  the
manner prescribed by the O.R.V. Act, Section 9(4) whereof contemplates  that
in the event that sufficient numbers of  reserved  category  candidates  are
not available to fill-up the reserved vacancies, fresh recruitment for  only
reserved category should take place.  Reliance was  placed  on  Ashok  Kumar
Uppal v. State of J&K AIR 1998 SC 2812, according  to  which  the  power  to
relax the Recruitment Rules or any other  Rules  made  by  State  Government
under Article 309 of the Constitution is conferred upon  the  Government  to
meet any emergent situation where injustice might have been  caused  to  any
individual employee or class  of  employees.   Since  the  State  Government
possesses the power to relax the requirement when it is just  and  equitable
to do so, especially in cases  of  non-availability  of  candidates  in  the
reserved  quotas,  the  State  Government  was  justified  in  relaxing  the
requirement for recruitment to these classes.  Furthermore,  the  provisions
of Article 320 of the Constitution regarding recruitment  to  Civil  Service
through the Public Service Commission is  directory  and  not  mandatory  in
nature. The High Court observed that Article 16(4) of  the  Constitution  of
India provides that nothing in that Article shall  prevent  the  State  from
making any provision for the reservation of appointments or 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. The  Court  held
that since the quota for SC & ST was fixed but  not  fully  filled,  if  the
State Government  had  devised  ways  of  recruitment  for  filling  up  the
reserved quota by relaxing requirements, thereby causing  some  disadvantage
or discrimination as vis-à-vis  recruits belonging to general category,  the
same cannot be termed as illegal. The High Court  also  held  that  reserved
candidates are in a distinct class from  general  candidates  and  therefore
the  general  category  has  no  locus  standi  to  challenge  the  mode  of
recruitment employed to fill the quota  meant  for  the  others  class,  and
reiterated the dictum that unequals cannot be treated  as  equals.  However,
the High Court  also  held  that  candidates  of  the  reserved  class  were
competent to challenge the decision of the government  superseding  them  by
appointing  candidates  of  the  same  category  through  another  mode   of
recruitment, as that would amount to discrimination. The High  Court  relied
on State of Mysore v. P. Narasing Rao AIR 1968 SC 349,  stating  that  there
is no denial of  equal  opportunity  unless  the  person  who  complains  of
discrimination is equally situated  with  the  person  or  persons  who  are
alleged to have been favoured. The High Court observed that  the  Resolution
dated 25.5.1982 issued by the State Government  can  be  termed  as  a  rule
under the proviso to Article 309 of  the  Constitution  and  held  that  the
Resolution was legal.  According to the Resolution dated  4.3.1983,  if  the
reserved category candidate selected by the OPSC joined or was appointed  on
a  date  later  than  the  reserved  category  candidates  selected  by  the
Selection Committee, the former would become junior.  The  High  Court  held
that this situation would not be proper as the OPSC  issued  Merit  List  of
selected candidates cannot be disturbed in respect of the  same  class  i.e.
SC & ST. The High Court thus partly modified the resolution, directing  that
the candidates selected by Selection Committee and subsequently  regularized
should be kept below the candidates selected by the OPSC under the  reserved
category quota, but should be placed in the Seniority List according to  the
then roster in accordance with the O.R.V. Act and Rules  framed  thereunder.
The High Court ordered that in case incumbents have  already  been  promoted
and are found to be adversely affected by such correction,  they  shall  not
be reverted to their respective positions until  their  turn  for  promotion
comes in accordance with the corrected gradation list.

8     It would be apposite to reproduce the relevant  legal  provisions  for
the facility of reference. The relevant provision  of  the  OMS  Rules  1951
are:
3.    Recruitment to the service shall be made by  means  of  a  competitive
examination to be held once every year.

Rule 3 was subsequently amended by way  of  an  Amendment  dated  31.10.1979
which was to apply prospectively. The amended version  is  reproduced  below
for the benefit of comparison:
3.    Recruitment to the service shall be made by  means  of  a  competitive
examination to be held at such intervals as the  State  Government  may,  in
consultation with the Commission  from  time  to  time  determine.  In  case
requisite number of Schedule Castes and Schedule Tribes candidates  are  not
available in the list of  successful  candidates  of  such  examination  for
filling up the reserved vacancies a fresh  competitive  examination  may  be
held only for  candidates  belonging  to  Schedule  Castes  and/or  Schedule
Tribes,  as  the  case  may  be,  for  filling  up  the  remaining  reserved
vacancies.

Rule 11, which was set aside by the Government Resolution  dated  25.5.1982,
is as follows:
11.   In case a vacancy occurs  after  the  list  of  successful  candidates
supplied by the Commission has been exhausted  before  announcement  of  the
result of the  next  examination,  such  vacancy  may  be  filled  up  by  a
successful candidate of the previous year, provided that his  age  does  not
exceed the maximum age limit laid down in the rules  and  failing  that,  by
any candidate who has the qualification prescribed in rule 20 of  Part  III.
In the latter event the appointment shall be made temporarily and shall  not
continue beyond the date when the result of the next year’s  examination  is
declared.

The relevant Section of the O.R.V. Act is as follows:
9 (4).      If the required number of Scheduled Caste  and  Scheduled  Tribe
candidates are not available for filling up the reserved vacancies, a  fresh
recruitment may be made only from  candidates  belonging  to  the  Scheduled
Castes or the Scheduled Tribes, as the case  may  be,  for  filling  up  the
remaining reserved vacancies.

Various Articles of the Constitution have also been referred to by the  High
Court which we have extracted for convenience.-
16 (4). Nothing in this article shall prevent  the  State  from  making  any
provision for the reservation of appointments  or  posts  in  favor  of  any
backward class of citizens which, in  the  opinion  of  the  State,  is  not
adequately represented in the services under the State.

309. Recruitment and conditions of service of persons serving the  Union  or
a State:    Subject to the provisions of  this  Constitution,  Acts  of  the
appropriate Legislature may regulate  the  recruitment,  and  conditions  of
service of persons appointed, to public services  and  posts  in  connection
with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person  as  he
may direct in the case of services and posts in connection with the  affairs
of the Union, and for the Governor of a State  or  such  person  as  he  may
direct in the case of services and posts in connection with the  affairs  of
the State, to make rules regulating the recruitment, and the  conditions  of
service of persons appointed, to such services and posts until provision  in
that behalf is made by or under an Act of the appropriate Legislature  under
this article, and any rules  so  made  shall  have  effect  subject  to  the
provisions of any such Act.

320(4). Functions of Public Service Commissions.-   Nothing  in  clause  (3)
shall require a Public Service Commission to be consulted  as  respects  the
manner in which any provision referred to in clause (4) of  Article  16  may
be made or as respects the manner in  which  effect  may  be  given  to  the
provisions of Article 335

The relevant part of the Government Resolution dated 25.5.1982  regularising
the  ad  hoc  candidates  recruited  under  the  OMS  Rules  also   deserves
reproduction.
3.     Government  have  been  advised  that  Section  9(4)  of  the  Orissa
Reservation of Vacancies in Posts and Services (For S.C. & S.T.)  Act,  1975
which is intended to confer benefits exclusively on S.C. &  S.T.  candidates
should prevail over rules 11 of the O.M.S.  Rules,  1951.   But  recruitment
made after 31.10.79 i.e. when Rule 3 of the O.M.S. Rules  1951  was  amended
for bringing about consistency with Section 9 of the  Reservation  Act,  are
to conform to the provisions of the amended rules.   Accordingly  Government
have been pleased to  decide  that  the  recruitment  of  403  S.C.  &  S.T.
candidates made in between the period from 15.5.78  to  31.10.79  should  be
deemed as  regular  appointments.   52  S.C.  &  S.T.  candidates  who  were
appointed on 6.2.80 i.e. after amendment of the  O.M.S.  Rules,  1951  shall
continue on a temporary basis until fresh competitive  examination  is  held
under Rule 3 of the OMS Rules, 1951 as amended.

The relevant portion of the Resolution dated 4.3.1983 read as follows:
      The Services of 403 S.C. &  S.T.  candidates  who  were  recruited  as
Junior Assistants for appointment against the reserved  posts  lying  vacant
in different Departments of Secretariat in between the period from the  15th
May 1978 to the 31st October  1979,  were  regularized  in  Home  Department
Resolution referred to above.   The question of fixation of their  inter  se
seniority vis-à-vis the P.S.C. passed general and S.C. & S.T. candidates  of
the recruitment year 1974-1975 in order to regulate their future  promotion,
was under consideration for some time past.  After careful  examination,  it
has been decided that inter  se  seniority  of  these  candidates  would  be
regulated according to their dates of appointment as Junior Assistant.   But
they will always be placed below the P.S.C. passed candidates  appointed  in
the same day.

9     Two questions of law have been  raised  by  the  Appellants  in  these
Civil Appeals. The first is whether the High Court erred  in  not  following
the proposition that regularisation of  unsustainable  ad  hoc  appointments
made in violation of Service Rules is not possible.  The second  is  whether
the High Court has erred  in  ignoring  the  proposition  that  a  power  of
relaxation does not tantamount to power of putting  the  entire  Recruitment
Rules on the shelf.  These  two  questions,  we  might  clarify,  have  been
raised by the group of OPSC recruits belonging to the general category.  The
few employees from the SC/ST quota who had succeeded in qualifying the  OPSC
examinations and have been placed above other SC/ST candidates  whose  names
had been forwarded by the Employment Exchange  and  who were  recruited  via
the Selection Committee had no subsisting grievances and that  is  why  have
not filed any Appeal.  The third group probably resigned themselves  to  the
relatively minor setback to their seniority  and  has  also  not  taken  the
matter further, presumably because the High Court  has  directed  that  they
are not to be reverted to their earlier positions if they have already  been
promoted, and theybare thus marginally affected by the impugned decision.
10    The impugned Judgment dated 8.8.2008 makes a  reference  a  number  of
cases, but surprisingly its attention had not been drawn to the decision  of
the Constitution Bench in Secretary, State of Karnataka v. Umadevi (2006)  4
SCC 1 which had already been  pronounced  on  10.4.2006  and  which  is  the
conclusive authority on the subject.   Had reference been  made  to  Umadevi
it would have obviated the need to  refer  to  any  earlier  decisions.   We
shall briefly discuss  some  of  the  decisions  of  this  Court  that  were
considered by the High Court.   A two Judge Bench  in  State  of  Orissa  v.
Smt. Sukanti Mohapatra (1993) 2 SCC 486 approved the striking  down  of  the
regularisation of illegal entry into service contrary to the  extant  Rules.
J&K Public Service Commission  v.  Dr.  Narinder  Mohan  (1994)  2  SCC  630
reached the same conclusion even without  adverting  to  Sukanti  Mohapatra.
Dr. Surinder Singh Jamwal v. State of J&K (1996) 9 SCC 619 is  an  Order  of
this Court which decided the dispute before it and did not even  attempt  to
or intend to expound the law and  is  therefore  not  in  the  nature  of  a
binding precedent, as will be evident from  the  fact  that  the  Court  has
actually applied Dr. Narinder Mohan.  In Ashok Kumar Uppal v. State  of  J&K
(1998) 4 SCC 179, this  Court  allowed  the  relaxation  of  the  prevailing
recruitment rules to  prevent  hardship  and  injustice  to  the  appellants
therein. With exponential increase in the decisions delivered by this  Court
it has become an imperative for Advocates to distinguish between orders  and
judgments and to correctly cull  out  the  ratio  of  a  judgment.   Learned
Senior Counsel for the Appellants has sought support from  the  observations
of the Constitution Bench in Direct Recruit Class  II  Engineering  Officers
Association v. State of Maharashtra (1990) 2 SCC  715  without  appreciating
that  the  dispute  therein  revolved  around  the  never-ending  disharmony
between Direct recruits and promotees as regards inter  se  seniority.   The
conundrum before us is essentially different making  it  untenable  to  read
every statement made therein automatically applicable.
11    These decisions, however, need not be adverted to  in  the  exposition
of the aspect of the law which arises before us. The prevailing law  is  now
discernable from Umadevi, which  has  correctly  been  cited  before  us  in
extenso.  The Umadevi doctrine is that if employment of persons is  contrary
to or de hors the statutory provisions and/or Rules  and  Regulations,  then
equities will not have any play even if such  persons  have  been  rendering
services for several years.   The most that can be done for  such  employees
is for the State Government to devise a scheme, as a one-time  measure,  for
their absorption  so  long  as  the  Governing  Statute  or  the  Rules  and
Regulations are not infringed.  In the words of  the  Constitution  Bench  –
“When a person enters  a  temporary  employment  or  gets  engagement  as  a
contractual or casual worker and the engagement is not  based  on  a  proper
selection as recognised by the relevant rules or procedure, he is  aware  of
the consequences of the appointment being temporary, casual  or  contractual
in nature. Such a person cannot invoke the theory of legitimate  expectation
for being confirmed in the post when an appointment to  the  post  could  be
made only by following  a  proper  procedure  for  selection  and  in  cases
concerned, in consultation with the Public  Service  Commission.  Therefore,
the theory of legitimate expectation  cannot  be  successfully  advanced  by
temporary, contractual or casual employees. It cannot also be held that  the
State has held out any  promise  while  engaging  these  persons  either  to
continue them where they are or to make them  permanent.  The  State  cannot
constitutionally make such a promise. It is also  obvious  that  the  theory
cannot be invoked to seek a positive relief of being made permanent  in  the
post.” Reliance on paras 33, 36 and 47 however does not advance the case  of
the Appellant since the State Government in the  present  case  has  carried
out recruitment in a regular  manner,  albeit  beyond  the  OPSC  which  had
presented a panel containing negligible  number  of  SC/ST  candidates.  The
subject challenged recruitment was neither capricious nor arbitrary  but  on
the  contrary  was  carried  out  in  consonance  with  a  known  method  of
selection, viz. Rule 9(4).  This was not a case of ad  hoc  employees  being
selected in a whimsical, inconsistent or haphazard manner  or  in  order  to
favour some individuals. The incumbents were  sponsored  by  the  Employment
Exchange and over 400 candidates were found suitable by a  duly  constituted
Selection Committee which interviewed them.  It was not a relaxation of  the
Rules in order to favour a few, but was  the  consequence  of  following  an
alternate  method  of  selection  intended  to  remedy  a  malady   in   the
recruitment of SC/ST candidates. It is well within the powers of  the  State
to  organise  an  alternative  recruitment  drive  when  insufficient  SC/ST
candidates are available, and under Article 320(4) of the  Constitution  the
OPSC was not required to be consulted.
12    It would be pertinent to discuss the amendment made to Rule 3  of  the
OMS Rules 1951. It was  only  on  10.10.1979  that  the  Rule  was  amended,
introducing the requirement that in  case  the  requisite  number  of  SC/ST
candidates are not available for filling  up  reserved  vacancies,  a  fresh
competitive  examination  must  be  held  only  for  SC/ST  candidates.  The
implication that can be drawn from the amendment  to  this  Rule  especially
because it has prospective effect, is that prior to 10.10.1979, it  was  not
mandatory to carry out recruitment only through the aegis of  the  OPSC  for
filling up vacancies even in the reserved categories.    This  furthers  the
case of the Respondents that the recruitment process through  the  Selection
Committee was not violative of any existing Rule, in that the  Rule  it  may
be  perceived  to  have  violated  did  not  exist  at  the  time  of  their
appointment. It seems to  us  that  the  reason  this  amendment  was  given
prospective effect is that the State did not want  to  detrimentally  affect
the status of  employees  already  recruited  in  a  fair,  transparent  and
regular manner albeit de hors to OPSC,  or  destabilize  the  legitimacy  of
that recruitment.   This seems  to  have  been  the  purpose  sought  to  be
achieved by the State Government in its Resolution  dated  25.5.1982,  which
we find imparted permanence to the  Respondents’  valid  recruitment  rather
than regularized their hithertofore ad hoc character.
13    Till 31.10.1979, the method of filling up  vacancies  when  successful
candidates were not available was laid out in Rule 11, which  required  that
the vacancies by filled up by successful candidates from the  previous  year
who are within the age limit.  The  Government  Resolution  dated  25.5.1982
which regularized the ad hoc candidates set aside Rule 11, allowing  Section
9(4) of the O.R.V. Act to prevail over it. The Government cannot be  faulted
for placing reliance on the Act as opposed to the  contradictory  Rules,  as
the latter is merely delegated legislation and deals with all vacancies,  as
opposed to the Section of the Act  which  specifically  pertained  to  SC/ST
candidates.
14    Rule 30 of the OMS Rules 1951 deals with scenarios where a  sufficient
number of successful SC/ST candidates are not available. It directs that  in
such a situation, the vacancies be filled up  as  unreserved  vacancies  and
also be carried forward for the subsequent years. Once again, this  Rule  is
in the face of Section 9(4), which prescribes  a  fresh  recruitment  drive.
Section 9(5) holds that if this fresh  recruitment  fails  to  fill  up  the
available seats, the vacancies should be filled by general candidates.  Rule
30 thus skips one of the steps postulated by statute, and in  light  of  the
rules of statutory interpretation, must be  cast  aside  in  favour  of  the
method of recruitment laid down by the O.R.V. Act.
15    It is thus clear that at the time of appointment of  the  Respondents,
the prevailing law regarding appointment  of  SC/ST  candidates  to  surplus
vacancies was contained in Section 9(4) of  the  O.R.V.  Act.  This  Section
does contain or prescribe any  limitation  regarding  the  method  of  fresh
recruitment  except  that  it  be  restricted  to  SC/ST   candidates.   The
sponsorship  of  names  by  the  Employment  Exchange  and  the   subsequent
interview by a  duly  constituted  Selection  Committee  was  thus  a  valid
alternative to recruitment by way of the OPSC competitive  examination.   In
fact, a fresh recruitment would  not  have  been  possible  by  means  of  a
competitive examination as Rule 3 required that these be  conducted  once  a
year, and the examination for 1974-75 had already been  conducted,  yielding
a meager number of 20 SC/ST candidates. We  therefore  find  the  method  of
appointment of the Respondents to be valid in the eyes  of  the  law;  their
regularization with effect from the date of appointment cannot be faulted.
16    The other question to which we must turn our attention is whether  the
Appellants had the locus standi to challenge the mode of recruitment of  the
Respondents. The High Court has  held  that  since  they  were  not  of  the
reserved class, they did not have the locus  standi  to  challenge  mode  of
recruitment of the Respondents who  were  of  the  reserved  class,  on  the
principle that unequals cannot be treated as equals.  While  we  accept  the
principle itself, we do not  find  it  pertinent  to  the  factual  scenario
before us. The unrefuted  factual  position  is  that  by  virtue  of  their
retrospective regularization, several of the  Respondents  gained  seniority
over the Appellants. In light of the direct impact on them,  the  Appellants
would have the locus standi to challenge the validity of the appointment  of
the Respondents. However, for the reasons  discussed  above,  the  challenge
while allowed is not successful.
17    It also seems to us that the High Court may not  have  been  justified
in allowing the challenge by  the  OPSC  reserved  category  candidates.  In
light of the fact that  the  Respondents  were  appointed  in  a  legal  and
legitimate manner, the Merit List should not have been disturbed to  protect
the rights of the OPSC recruits. It is certainly arguable that there was  no
justification  to  destabilize  seniority  by  departing  from  the  general
principle of service law  that  seniority  is  determined  by  the  date  of
joining.   However, this contention has not been raised  before  us,  so  we
shall refrain from any further discussion on  the  matter,  which  hereafter
stands closed for not having been pressed till date.
18    We see it fit  to  uphold  the  impugned  Judgment.   We  dismiss  the
Appeals before us, but with no order as to costs.

         ......................................................J.
        (VIKRAMAJIT SEN)


       ......................................................J.
      (PRAFULLA C. PANT)
New Delhi,
October 16, 2015.

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