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Judgment
Ram Mohan Reddy, J.—This intra-court appeal u/s 4 of the Karnataka High Courts Act, 1961 is fifed by the writ petitioners assailing the order dated 6-7-2006 of the learned Single Judge in W.R. No. 21410/2005.
The petitioners working as Telephone Mechanics under the respondents, claiming to belong to Scheduled Tribe category submitted applications for filling up of the Departmental quota of 40% of vacancies to the post of Telecom Technical Assistants (for short TTAS'') under the notification dated 24-06-2004 issued by the 1st respondent pursuant to the notification dated 18-11-2003 of the BSNL Corporate Office, with instructions to conduct Pre-Qualification Entry Level Test and the Limited Departmental Competitive Examination to the cadre of TTAS, in terms of the TTA Recruitment Rules, 2001. The petitioners found eligible and qualified for filling up of the vacancies set apart for Scheduled Tribe category, were permitted to appear for the Pre-Qualification Entry Level Test held on 14-09-2004. The petitioners having faired well, found their names at Sl. Nos. 7 and 8 of the select panel in the notification dated 2-12-2004 Annexure-"C", as against six vacancies reserved for Schedule Tribes. The 2nd respondent, by notification dated 16-05-2005 Annexure-"E", fixed 18-06-2005 as the last date for receiving applications from the candidates whose names were borne on the select panel and scheduled the Limited Departmental Competitive Examination to be held on 28-08-2005.
At about the said time, a candidate belonging to the Scheduled Caste whose name was found in the select panel, filed W.P. No. 12011/2005 alleging non-allotment of a post for the Scheduled Caste category, which was disposed of by order dated 28-07-2005 Annexure-"F" recording the statement of the learned Counsel for the respondent-authority that one vacancy of TTA, under the 40% Departmental Quota was reserved for Scheduled Caste.
The 2nd respondent, by notification dated 22-07-2005 Annexure-"G", withdrew the earlier notification allotting vacancies to the various categories under the 40% Departmental Quota and issued a revised/ modified allotment of vacancies whereunder no post was reserved for Scheduled Tribe. In addition, the 2nd respondent published a revised Supplementary Select Panel of candidates dated 22-07-2005 Annexure-"H" deleting the names of the petitioners from the select panel as having not qualified. Hence, the petitioners preferred the Writ petition impugning Annexures "G" and "H" and sought for a mandamus to provide reservation for ST category in the Departmental Quota of 40% of vacancy of TTAS.
This petition was opposed by filing Statement of objections dated 8-11-2005 of the respondents, admitting the facts aforestated, interalia contending that the TTA cadre was a restructured cadre and that secondary switching area (for short ''SSA''), were initially instructed to take the TTAS working in their respective SSAs, plot them in the post based roster, identify the excess or shortage of reserved category in the said roster, as also expand the roster to the extent of vacancies notified under the 40% Departmental Quota and accordingly adjust the excess/shortage in SC and ST cadre. It is stated that the Belgaum SSA had 10 vacancies under the 40% Departmental Quota and accordingly, 4 vacancies were set apart for other categories (OC), nil against Scheduled Caste (SC) and 6 reserved for Scheduled Tribe (ST). The SC and ST Association, it is stated, objected to the allotment and reservation of the vacancies to the categories, pursuant to which, clarification was sought from BSNL Headquarters which communicated their policy decision to the Heads of Telecom Circles vide their letter dated 19-07-2005 by which existing old roster in the TTA cadre was to be frozen as on 27-07-2001, the date of publication of the revised recruitment rules of TTA. By the clarification, it was made clear that the categories and rosters, irrespective of the excess or shortage should be applied afresh for the purpose of selection while following the principles of post based roster system, in terms of an official memorandum dated 2-7-1997.
According to the respondents, in terms of the instructions contained in Annexure-"R1" and the model roster at Annexures "R2" and "R3", the methodology adopted for allotment of the various quotas against the vacancies based on roster points, resulted in the re-notification whereunder out of 10 vacancies, 9 were set apart for other categories, one reserved for Scheduled Caste while none for the Scheduled Tribe. Thus, it is stated that as there was no vacancy available for ST, six out of eight candidates declared qualified under the ST category having scored marks on par with the candidates of other category (OC) were declared qualified while the petitioners whose names were shown at Sl. Nos. 7 and 8 were declared not qualified.
The learned Single Judge, having regard to the material on record, noticed that application of the roster disclosed non-availability of vacancies for ST in the Belgaum SSA under the 40% Departmental vacancies of TTAS, accepted the version of the respondents, observed that the petitioners would have no alternative but to wait for their turn as per the roster points reserved for ST, and rejected their contention that the respondents were estopped from revising the list and denying the petitioners a right to the post of TTA. The learned Single Judge accordingly, dismissed the petition by the order impugned.
Learned Counsel for the petitioners contends that the petitioners having been permitted to appeal for the Pre-Qualification Entry Level Test held on 14-09-2004 successfully passed in the test, and had their names borne on the select panel at Sl. Nos. 7 and 8, in terms of the notification dated 2-12-2004 Annexure-"C" for filling up of six vacancies reserved for STs, in the midway of selection process the respondents were estopped from revising the reservation of 6 vacancies to ST category, denying the petitioners of a purported and vested right to the said post.
Having heard the learned Counsel for the petitioners, perused the pleadings and the order impugned, the only question that arises for decision-making in this appeal is whether in the facts and circumstances of the case, the learned Single Judge was justified in rejecting W.P. No. 21410/2005?
The facts of this case discloses that out of 23 vacant posts of TTAS to be filled up, 50% i.e. 12 posts were allotted to the Departmental Quota out of which 40% i.e. 10 posts were made available for Limited Departmental Competitive Quota, while two posts were allotted to the Absorption Quota. There is no dispute that the TTA cadre is a restructured cadre and a Secondary Switching area (SSA) cadre. The Belgaum Secondary Switching Area notified vacancies for the 10 TTA posts setting apart 3 vacancies for other categories (OC); nil against (SC) and reserved 6 for ST, at which stage, the petitioners were permitted to appear for the Pre-Qualification Entry Level Test and having been found suitable were enlisted at Sl. Nos. 7 and 8 under the ST category in the notification (select panel) dated 2-12-2004 Annexure "C".
The notification allotting reservation to the 10 posts was withdrawn by notification dated 22-7-2005 Annexure-"G" of the 2nd respondent and fresh allotment of reservation was made by setting apart 9 vacancies to OC, one for SC while none for ST category. In addition, the 2nd respondent published a revised supplemental list of candidates (select panel) of even date Annexure-"H" wherein the petitioners were shown to be not qualified.
The respondents sought to justify Annexure-"G" on the premise that on account of mis-application of the roster point showing 6 vacant posts for ST when objected to by SC/ST Association, was clarified by the Corporate Office, BSNL in its letter dated 19.7.2005, pursuant to which the old roster in the TTA cadre was frozen as on 27.7.2001 and roster was applied afresh in accordance with the Official Memorandum dated 2.7.1997 Annexure-''R1" of the Department of Posts and Telegraphs. Thus essentially what was done by the respondents while issuing Annexure-"R1" was to readjust the roster point and allot the vacant posts to the appropriate reserved cadre.
At this stage, it is useful to refer to the decision in the case of R.K. Sabharwal and others Vs. State of Punjab and others, wherein, a Constitution Bench of the Supreme Court observed thus:
When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make 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. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotes belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned Counsel and reject the same.
The correction of the mis-application of the roster point as noticed supra, in our view, is in conformity with the constitutional philosophy regarding reservation and the decision in R.K. Sabharwal''s case. The correction of misapplication of the roster was to ensure the correct reservation for the relevant category by issuing notification Annexure-"G". It is not the case of the petitioners that the application of the roster points as notified in Annexure-"G" is incorrect or mis-applied. No material whatsoever is placed in the direction of establishing that Annexure-"G" notification suffers from mis-application of reservation. The action of the respondents can hardly be said to be either arbitrary or illegal in the matter of issue of notification Annexure-"G".
As a consequence, the notification Annexure-"H" being the revised supplemental list of candidates (select panel) showing the petitioners as not qualified on account of there being no vacancy reserved for ST category, in our opinion, cannot be found fault with. Moreover, the petitioners did not secure marks on par with the candidates of other categories (OC) so as to compete with the said candidates for appointment under the said category, as was done by the candidates belonging to ST category at Sl. No. 1 to 6 in the select panel, who secured marks on par with candidates in the other categories.
The respondents-authorities having noticed the mistakes crept in the reservation were duty hound to correct the same so as to make the appointment to the posts of TTAS valid and legal. The reason for the correction and issue of notification Annexures "G" and "H" do not suffer from any legal infirmity but rather bona fide. In the circumstances, the petitioners'' claim of legitimate expectation or promissory estoppel is unsustainable.
It is useful to refer to the decision in the case of Shankarsan Dash Vs. Union of India, wherein a Constitutional Bench of the Supreme Court, observed thus;
It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in The State of Haryana Vs. Subash Chander Marwaha and Others, , Miss Neelima Shangla, Ph. D. Candidate Vs. State of Haryana and Others, , or Jatinder Kumar and Others Vs. State of Punjab and Others, .
It is no doubt true that in the midstream of the selection to the vacancies of TTAS, respondents withdrew the earlier notification allotting 6 vacancies for SC category. Merely because, the petitioners were permitted to appear for the pre-qualification examination and their names were shown at Sl. Nos. 7 and 8 in the select panel cannot ipso facto be said to have indefeasible right to be appointed to the pass of TTAS against ST category. Ordinarily, a notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection, they do not acquire any right to the post. In the facts of this case, the selection was yet to be made when the discrepancy was noticed and remedied. The selection process had not been completed and before its completion, the respondents reviewed their earlier decision leading to reservation of the posts for appointment. It is therefore clear from the settled legal position that the petitioners had no right to claim that the selection process once started, must be completed without making any change in reservation. It is well-settled law that no appointment can be made in public office contrary to the Constitutional philosophy adumbrated under Article 14 and 16 of the Constitution of India. The roster points determine the number of vacant posts reserved for SC and ST.
The opinion of the learned Single Judge cannot be found fault with. The writ appeal is without merit and is accordingly rejected.