Delhi High Court
R. Nallathurai vs Airports Authority Of India & Others on 30 March, 2009
Author: Sanjiv Khanna
Bench: Ajit Prakash Shah, Sanjiv Khanna
LPA NO.369/1999 Page No.1
REPORTABLE
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA NO. 369 OF 1999
% Date of Decision : 30th March, 2009
R. NALLATHURAI ..... Appellant
Through: Ms. Shobhna Takiar, Advocate
versus
AIRPORTS AUTHORITY OF INDIA & ORS. ..... Respondents
Through: Mr. Lalit Bhasin, Ms. Ratna,
Ms. Shreya, Advocates.
CORAM:
HON'BLE MR. JUSTICE AJIT PRAKASH SHAH, CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ? Yes.
3. Whether the judgment should be reported
in the Digest ? Yes.
SANJIV KHANNA, J.
R. Nallathurai (hereinafter referred to as the Appellant, for short) was appointed as Junior Draftsman (Civil) in Airports Authority of India (hereinafter referred to as the Respondent No. 1) on 29 th January, 1979. On 14th March, 1984, he was promoted as Assistant Engineer (Civil). By July 1991, the Appellant had completed after relaxation, the requisite minimum qualifying service of eight years required for being considered for promotion to the post of Executive Engineer (Civil).
2. In the Departmental Promotion Committee (hereinafter referred to as DPC, for short) meeting held in July 1991, 15 officers were LPA NO.369/1999 Page No.2 empanelled for promotion to the post of Executive Engineer (Civil) but the Appellant was not selected. The empanelled candidates were, thereafter appointed on different dates between 1991 and 1992.
3. The Appellant made repeated representations staking his claim for appointment as an Executive Engineer (Civil) but these were rejected.
4. In the meanwhile, in 1993 the first Respondent restructured the cadre and intermediatory post of Assistant Executive Engineer (Civil) was created. Assistant Engineers (Civil) could be considered for appointment as Assistant Executive Engineer (Civil) and the said new post became feeder post for appointment to the post of Executive Engineer (Civil).
5. On 7th July, 1993, the Appellant filed Civil Writ bearing WP(C) No. 2902/1993 claiming that the new restructured cadre introduced in 1993 was not applicable to him and he should have been promoted to the post of Executive Engineer (Civil) in 1991. The relief clause of the writ petition for the sake of convenience is reproduced below:
"In view of the grounds set out in the preceding paragraph, this Hon'ble Court may be pleased to:
(i) issue writ, order or direction in the nature of certiorari quashing the impugned orders dated January 27, 1993 and January 29, 1993 (annexure P-III and P-IV);
(ii) issue writ, order or direction in the nature of mandamus:
a) directing the Authority (Respondent No. 1) to LPA NO.369/1999 Page No.3 exclude the Petitioner from the purview of the scheme for restructuring the Engineering Cadres and to consider him for promotion directly to the post of the Executive Engineer (Civil) without having to pass through the newly created intermediatory cadre of Assistant Executive Engineer in case the challenge to the legality of the scheme fails;
b) direct respondent no. 1 to constitute and convene a review DPC for considering afresh for selection to the post of Executive Engineer by promotion and to direct that the following requirements be met in conducting its proceedings;
I) the reserved vacancies shall be calculated based on directives of the Central Government issued in Government of India letter No.271100/88/STN dated April 7, 1989 (Annexure P-IX).
II) Selections shall be made based on the Annual Confidential Reports and without conducting the interviews.
III) In case the challenge to the practice of the interview fails, an appropriate ceiling on the marks allotted for interview shall be laid down by the Authority competent to make the rules or approve the regulations in terms of Section 10 read with Section 36 or Section 37(2)(b) read with Section 38(2) of the Act, as the case may be (the Central Government) with due regard to the letter and spirit of the Judgments of the Hon'ble Supreme Court in this regard.
IV) The Policy of the Central Government, namely, selecting the SC/ST candidates for appointments against the reserved vacancies without regard to the prescribed bench marks if any provided they are not considered unfit for promotion shall be applied to the officers in the Authority also.
(c) declaring that in the event of consideration of the petitioner by the DPC for promotion to the intermediatory cadre of Assistant Executive Engineer, results of such proceedings, whether LPA NO.369/1999 Page No.4 favourable to the Petitioner or not, shall be without prejudice to the right of the Petitioner to be considered for promotion to the post of Executive Engineer directly.
(d) directing that the DPC for selection to the post of Assistant Executive Engineer, if it considers the Petitioner suo moto or otherwise, shall make its assessment exclusively on the basis of the ACRs of the Petitioner and no interview shall be conducted for this purpose.
(e) directing that in the event of empanelment of the Petitioner on the basis of the recommendation of the review DPC his promotion to the post of Executive Engineer shall be effective from the date his immediate junior was promoted and his seniority shall be as per the ranking given in the select panel of the review DPC and for the purpose of promotion to the next higher post, namely, Superintendent Engineer, qualifying service shall be reckoned from the date the Petitioner's immediate junior was promoted as Executive Engineer."
6. Challenge to the restructuring and creation of Assistant Executive Engineer (Civil) as a feeder post for appointment as Executive Engineer (Civil) w.e.f. 1993 was given up and not pressed before us or before the single judge.
7. Counsel for both sides agreed that as per 40 point roster system vacancies at point nos. 16 to 25 were filled up from empanelled candidates as per DPC held in July 1991. Only one post at point no. 17 was reserved for a candidate belonging to Scheduled Tribes. As per the first respondent the said post was filled up by appointment of Mr.D. Rajshekharan as Executive Engineer (Civil), who was senior to the Appellant and therefore the Appellant was not appointed. During LPA NO.369/1999 Page No.5 the course of hearing, learned counsel for the first Respondent admitted that if there were two vacancies reserved for Scheduled Tribes candidate in the 40 point roster system, the Appellant would have been appointed as Executive Engineer (Civil) after being empanelled by DPC in 1991. Counsel for the appellant submitted that posts reserved for Scheduled Tribes candidates in the cycle one and point number 4 in the second cycle were carried forward and, therefore, the appellant should have been appointed/empanelled by the DPC in July, 1991.
8. In view of the submissions made by the counsel for the parties, we feel that the crux or the principal dispute centers around whether or not in 1991 there were two reserved vacancies for Scheduled Tribes candidates as per 40 point roster and as per applicable guidelines/ rules. In case, there was two or more reserved vacancies for Scheduled Tribes, the Appellant is entitled to succeed and if there was only one post reserved for Scheduled Tribes candidate the Appellant cannot claim promotion.
9. It is an admitted case of the parties that appointments have been made in terms of the 40 point roster system and in 1991 second cycle of 40 point roster system was being implemented. Posts at point nos. 4, 17 and 31 as per 40 point roster system are reserved for Scheduled Tribes candidates. Posts at point nos. 1, 14, 22, 28 and 36 are reserved for Scheduled Castes candidates. The Appellant has LPA NO.369/1999 Page No.6 filed details of cycle 1 and cycle 2 at pages 38A and 38B of the appeal paper book. Posts in cycle one and at points 1 to 15 of the second cycle had been filled up before the DPC was held in July, 1991. The 40 point roster system and the appointments made in the two cycles relevant for the present decision are as under:
"MODEL ROSTER FOR POSTS FILLED BY DIRECT RECRUITMENT ON ALL INDIA BASIS BY OPEN COMPETITION & PROMOTION Points Whether unreserved Filled by which Filled by which in the or reserved category (Cycle category Roster -I) (Cycle-II)
1. Scheduled Caste Scheduled Caste General
2. Unreserved --------- ---------
3. Unreserved --------- Scheduled Caste
4. Scheduled Tribe General Scheduled Caste
5. Unreserved --------- Scheduled Caste
6. Unreserved --------- ---------
7. Unreserved Scheduled Caste Scheduled Caste
8. Scheduled Caste Scheduled Tribe General
9. Unreserved ---------- --------
10. Unreserved ---------- --------
11. Unreserved ---------- --------
12. Unreserved ---------- --------
13. Unreserved ---------- --------
14. Scheduled Caste Scheduled Caste General
15. Unreserved ---------- ----------
16. Unreserved ---------- ----------
17. Scheduled Tribe General Scheduled Tribe
18. Unreserved --------- ---------
19. Unreserved --------- ---------
20. Unreserved --------- ---------
21. Unreserved --------- ---------
22. Scheduled Caste Scheduled Caste Scheduled Caste
23. Unreserved ---------- ---------
24. Unreserved ---------- ---------
25. Unreserved ---------- ---------
26. Unreserved Scheduled Caste ---------
27. Unreserved Scheduled Caste ---------
28. Scheduled Caste General Scheduled Caste LPA NO.369/1999 Page No.7
29. Unreserved --------- ----------
30. Unreserved --------- ----------
31. Scheduled Tribe General ----------
32. Unreserved ---------- ----------
33. Unreserved ---------- ----------
34. Unreserved ---------- ----------
35. Unreserved ---------- ----------
36. Scheduled Caste General ----------
37. Unreserved Scheduled Caste ----------
38. Unreserved --------- ----------
39. Unreserved --------- ----------
40. Unreserved --------- ----------
Note :
If there are only two vacancies to be filled in a particular year, not more than one may be treated as reserved and if there be only one vacancy, it should be treated as unreserved. If on this account, a reserved point is treated as unreserved, the reservation may be carried forward to the subsequent three recruitment years."
10. Examination of cycle 1 shows that post at point no. 17 and point no. 31 were filled up from general category candidates and not by candidates belonging to Scheduled Tribes. Cycle 1 further shows that there was interchange between posts reserved for general category and Scheduled Castes category. In the second cycle, post at point 4 reserved for Scheduled Tribes candidate was filled up by a Scheduled Castes candidate. Thus, we have to examine whether or not posts/points reserved for the Schedule Tribes candidates were carried forward to be filled up in DPC held in July, 1991.
11. Counsel for the appellant is right in her contention that the first respondent is guilty of taking contradictory stands in respect of carry LPA NO.369/1999 Page No.8 forward of Scheduled Tribes vacancies.
12. Before the learned single Judge and in the counter affidavit, the stand taken by the respondent No.1 is as under:-
"I submit that in August, 1991 a proposal was made to promote 10 AE (C) to the post of Executive Engineer (C). The reservation of posts in respect of 10 vacancies was as under:-SC 1 ST 1 UR 8
Total :- ---------------
10
=======
Accordingly, 10 candidates including
2 reserved category candidates were promoted to the post of Executive Engineer (C). Candidates who was promoted against the vacancy reserved for ST category was senior to the petitioner in the cadre of Assistant Engineer (C). Further in October, 1992, 5 Assistant Engineer (C) were also promoted to the post of Executive Engineer (C). The reservation position in respect of the said 5 Vacancies was as under:-SC 1 UR 4
--------------------Total :- 5
========="
13. It was further stated in the counter affidavit as :-
"In reply to para 3.4., I submit that the contents thereof are wrong and denied. I submit that though Shri R.K. Nirwal and Shri K.K. Rajvanshi are junior to the petitioner in the cadre of Assistant Engineer, they were promoted to the post of Executive Engineer. They were so promoted after being selected in the DPC which was held to fill the vacancies in the cadre of the Executive Engineer. I also submit that the LPA NO.369/1999 Page No.9 petitioner was also considered by the above DPC but he could not make the grade and as such he could not be placed on the panel for the promotion to the post of Executive Engineer (c). I further submit that Shri. R.K. Nirwal and Shri. K.K. Rajvanshi were placed on the panel on the basis of better ACR ratings and performance in the interview. It is pertinent to note that Shri R.K. Nirwal is a decree holder in Engineering while Shri. K.K. Rajvanshi is a post graduate in Engineering but the petitioner is only a diploma holder in Engineering.
xxxxxx 4.5 Further it is not true that Shri R.K. Nirwal and Shri K.K. Rajvanshi were promoted against reserved vacancies. In this regard the reservation position in this respect of 10 vacancies which were filled by promoting 10 candidates was as under:-SC 1 ST 1 UR 8
------------------
10
========
I further submit that Shri D.
Rajashekharan and Shri. S.N. Jagdesan were promoted against the vacancies reserved for ST and SC category candidates respectively in the said DPC and that both of them were senior to the petitioner in the cadre of Assistant Engineer. The remaining 8 vacancies were filled by promoting the un-reserved candidates. It is also submitted that the reservation position in respect of the vacancies is determined in respect of the vacancies which are available at a particular point of time."
14. The above portions of the counter affidavit were relied upon by the learned single Judge to dismiss the writ petition. In the written submissions filed by the respondent No.2 before the learned single LPA NO.369/1999 Page No.10 Judge, it was stated as under:-
"Hence, there was no violation of reservation policy by Respondent No.1. Respondent No.1 did not follow any de-reservation of reserved vacancies as alleged. Further no diversions were made from ST to SC and no general category candidate was appointed against any reserved post."
"..........It is incorrect that Shri. M.L. Lakra (sc candidate) was accommodated against post diverted to Scheduled Tribe. Mr. Lakra was promoted in 1988 and no diversions were made from ST to SC and no general category candidates (sic) was appointed against any reserved post."
15. As far as carry forward of reserved posts for Scheduled Castes and Tribes in 1988 is concerned, the respondent No.1 in their letter dated 14th December, 1988, written to the Commissioner for Scheduled Castes and Scheduled Tribes had stated as under:-
"(d) The posts reserved for ST are interchangeable with SC as per Govt. directives.
Out of 10 AEs(C) promoted as EE(civil) since April 1988, 4 AEs(C) belong to SC category as against the short-fall of 2 SC and 2 ST. One post is still remaining vacant. This has been done as per rules and Shri Meena should not have any grievance in this regard."
16. Counsel appearing for the first respondent had admitted that there is contradiction in the statement made in the letter dated 14th December, 1988 and the counter affidavit and written submission quoted above. As per the averment made in the letter dated 14th December, 1988, one post belonging to reserved category remained vacant and was carried forward. It has not been explained in the LPA NO.369/1999 Page No.11 counter affidavit filed by the respondent No.1, when this vacancy was filled up. As per the written submissions filed before the learned single Judge by the first respondent, Mr. M.L. Lakra, a Scheduled Castes candidate, was not accommodated against a post diverted from Scheduled Tribes. In other words, as per letter dated 14th December, 1988, one post reserved for Scheduled Tribes candidate was vacant. Therefore, when vacancies in 1991 were to be filled up, two posts reserved for Scheduled Tribes candidates were available, one at point 17 in 40 point roster system and one relating to the backlog.
17. Counter affidavit and written submission quoted above also state that respondent No.1 did not fill up the reserved posts during the period 1988 to 1991 and no General category candidate was appointed against Scheduled Tribes post. To contradict the said statement of respondent No.1, the appellant has filed before this Court appointment orders of Mr. H.K. Garg and Mr. A.K. Aggarwal issued in February and March 1989 respectively, in which it was mentioned that they were being promoted on ad hoc basis against posts to be filled up on regular basis by reserved category candidates and their ad hoc promotion was subject to their being reverted back when a suitable reserved category candidate was appointed. Confronted with the above affidavit and material, the respondent No.1 in their reply to C.M.No.1475/2001 changed their stand and in this reply, it was stated as under:-
LPA NO.369/1999 Page No.12
"As stated above, in the ST category only one vacancy was available during the year 1991 against which Shri. Rajashekharan was promoted. Shri. M.K. Lakhra, an SC candidate was promoted to the post of Executive Engineer (Civil) in the year 1988 on the basis of DPC held in 1988 against the vacancy reserved for ST category by inter-changing the reservation, as no ST candidate was available on panel. In the inter-change of reservation between SC and ST and vice-a-versa was permissible as per the rules applicable. It is denied that two general category candidates were promoted in violation of the Government of India directives. Shri. H.K. Garg and R.K. Aggarwal were promoted against reserved vacancies but their promotion was made on ad hoc basis with the condition that the same will not confer any right to them for regular promotion in future and they are liable to be reverted any time as and when the post was held on regular basis by reserved category candidates. The two reserved category vacancies were subsequently filled in the year 1991 by promoting Shri Rajashekharan and S.N. Jagdeesan."
18. The said reply contradicts the written submissions/counter affidavit filed before the learned single Judge in three respects. Firstly, it is stated that Mr. M.K. Lakra, a Scheduled Caste candidate was appointed against a post reserved for Scheduled Tribes candidate and secondly, Mr. H.K. Garg and Mr. R.K. Aggarwal were promoted against the reserved vacancy, though earlier in counter affidavit, it was stated that no ad hoc promotions were made against any Scheduled tribe vacancies and Mr. H.K. Garg and Mr. R.K. Aggarwal were not appointed against reserved posts. Thirdly, it is stated that Mr. D. Rajshekharan was promoted in 1991 against one of the LPA NO.369/1999 Page No.13 reserved vacancies to which Mr. H.K. Garg and Mr. R.K. Aggarwal were given ad hoc promotions. If, Mr. Rajshekharan was promoted against one of the reserved posts, which was temporarily occupied by Mr. H.K. Garg or Mr. R.K. Aggarwal, then the stand of the respondent No.1 that Mr. Rajshekharan was promoted against reserved post at point 17 of the 40 point roster system is incorrect. Mr. Rajshekharan was promoted against an earlier vacancy reserved for Scheduled tribe candidate. This also shows that the admission in the letter dated 14th December, 1988 that one post reserved for the Scheduled Tribes candidate was vacant, was correct and the plea of the respondent No.1 to the contrary, is incorrect.
19. Confronted and asked to explain their contradictory stand, the respondent No.1 had filed an additional affidavit dated 15th May, 2006. In this affidavit it is stated that 7.5% of the total posts of the Executive Engineer (Civil) have to be reserved for Scheduled Tribes candidates as it is the lowest rung of Group A post and promotion to the said post is by way of selection. It is stated that de-reservation requires prior approval from the competent authority i.e., Board of Directors in case of Group A posts. It is pointed out that after 1980, two posts at point Nos. 17 and 31 reserved for Scheduled Tribe candidates were filled up by promoting General category candidates in 1980 and 1983. It is further stated that in 1980, there was no LPA NO.369/1999 Page No.14 provision or rule for carrying forward the vacancies reserved for Scheduled Castes and Scheduled Tribes. It is submitted that Mr. M.K. Lakra, a Scheduled Castes candidate was appointed on the post at point 4 reserved for Scheduled Tribes candidate in the second cycle of the 40 point roster system by way of exchange, which was permissible. Thereafter, Mr. Rajshekharan was promoted against the post at point 17 reserved for Scheduled Tribes candidate. With regard to promotions letter/office orders of Mr. A.K. Garg and Mr. R.K. Aggarwal, it is stated as under:-
"10. As regards the promotion of Mr. H.K. Garg and Mr. R.K. Agarwal, it is submitted that due to inadvertence it was stated in their promotion letters that they were promoted on ad hoc basis as Executive Engineer (Civil) against the reserved vacancy at that point of time."
20. It is thus explained that Mr. H.K. Garg was promoted against an un-reserved post at point 30 of second cycle and Mr. R.K. Aggarwal was promoted against a post at point 14, which was reserved for a Scheduled Castes candidate, but the said promotion was valid and no Scheduled Castes candidate was available and as Scheduled Castes candidates had already been promoted at point 3, 4, 5 and 7, which were non-Scheduled Castes points. Thus, the respondent No.1 has by taking contradictory stand in their affidavits and written submissions have created confusion and ambiguity. In these circumstances, in LPA NO.369/1999 Page No.15 normal course, the appellant would be entitled to relief and appeal should be allowed.
21. However, the first respondent in their affidavit dated 15th May, 2006 has referred to the notification dated 20th July, 1974 issued by the Department of Personnel and Administrative Reforms in which it has been stated as under:-
"(iv) For determining the number of vacancies to be reserved for Scheduled Castes and Scheduled Tribes in a Select List, a separate roster on the lines of the roster prescribed in Annexure I to Office Memorandum No.I/II/69.Estt. (SCT) dated the 22nd April, 1970 ( in which point 1, 8, 14, 22, 28 and 36 are reserved for Scheduled Castes and points 4, 17 and 31 for Scheduled Tribes) should be followed.
If, owing to non-availability of suitable candidates belong to Scheduled Castes or Scheduled Tribes, as the case may be, it becomes necessary to deserve a reserved vacancy, a reference for dereservation should be made to this Department indicating whether claims of Scheduled Castes/Scheduled Tribes candidates eligible for promotion in reserve vacancies have been considered in the manner indicated in this O.M.
(v) There will, however, be no carry forward of reservations from year to year in the event of an adequate number of Scheduled Caste/Scheduled Tribe candidates not being available in any particular year.
(vi) While vacancies reserved for Scheduled Castes and Scheduled Tribes will continue to reserved for the respective community only, a Scheduled Caste officer may also be considered for appointment against a vacancy reserved for Scheduled Tribes, or vice versa, in the same year itself in which the reservation is made, where the appropriate reserved vacancy could not be filled by a Scheduled Tribes or a Scheduled Caste candidate, as the case may be."
LPA NO.369/1999 Page No.16
(emphasis supplied)
22. By subsequent notification dated 3rd February, 1975, the Department of Personnel and Administrative Reforms has clarified that in case of promotion, which has an element of direct recruitment, reservation shall not exceed 50% and if on account of the said Rule, any post in the roster is to be treated as unreserved, the reserved post shall be carry forward for 3 recruitment years. The above clarification gets noticed in the note in the 40 point roster system quoted above. The affidavit dated 15th May, 2006 further states that the letter dated 18th July, 1989 was written to the Department of Personnel, Pension and Public Grievances asking for clarification on reservation in the lowest rung of Group A posts; whether the failure to get the said post de-reserved as per Rule would imply carry forward or the said reservation has elapsed. Relevant portion of the said letter reads as under:-
"Now the question arises whether under such a circumstance, the reservation of the said two posts would stand lapsed automatically or these are to be carried forward to be filled by candidates belonging to SC/ST communities only. If so, carry forward to be allowed for how many years when there is no proviso for carry forward in the case of promotions made by selections."
23. In response thereto, the Department of Personnel and Training clarified as under:-
LPA NO.369/1999 Page No.17
"In promotion by selection from Group C to Group-B and within Group-B and form Group-B to the lowest rung of Group-A and within Group-A, there is no provision for reservation to be carried forward. In the absence of eligible SC/ST candidates, the reserved vacancies can be dereserved and filled by general candidates. In this case, the reserved vacancies were filled by general candidates without getting the vacancies dereserved. The fact that the process of dereservation was not gone through does not change the position that the reservations in any case could not be carried forward to the subsequent use. What could be done in the circumstances is to obtain in the ex-post facto approval of the competent authority for the dereservation of these vacancies after which the reservations can be treated as lapsed.
(M.V. KESAVAN) DIRECTOR (E) 18.7.1989"
24. After the said letter, in the 100th meeting of Board of Director, which was held on 26th August, 1992, de-reservations were approved with the observation that in future reserved posts should not be allowed to lapse.
25. The appellant has accepted the said position. In his rejoinder affidavit filed on 5th November, 2001 it is stated as under:-
"It is agreed that no carry forward of reservation was made from year to year, in the event of adequate number of SC/ST candidates not being available in any particular year. Nonetheless, Respondent No.1 carried forwarded two ST vacancies prior to the DPC of 1988 to the DPC of 1991 and one ST post was interchanged to SC and again two reserved post were given to General category candidates, i.e., the promotion LPA NO.369/1999 Page No.18 of Shri. H.K. Garg and Shri. R.K. Agarwal in February, 1989 and March, 1989 respectively on ad-hoc basis with a condition that "Since his promotion is made purely on ad-hoc basis, it will not confer any right on him for regular promotion in future and he is liable to be reverted at any time as and when the post is filled on regular basis by a reserved candidate."
In the DPC held in 1988 4 S.C.'s were promoted against 3 SC vacancies and it proves that SC promotion was in made in excess, it thus clearly shows that two promotions that were made in February, 1989 and March, 1989 are meant for S.T. category only." (emphasis supplied)
26. Therefore, the position which emerges is that during the relevant period that is up to 1992 posts/points reserved for candidate from Scheduled Castes and Scheduled Tribes could not be carried forward for non-availability of candidates in a particular year except in cases covered by the note. The condition mentioned in the note is not applicable in the present case. Further, admittedly the appellant had not qualified for and did not meet the eligibility requirements for being considered for the appointment to the post of Executive Engineer (Civil) till 1991 and in fact he had been granted relaxation for consideration for appointment to the said post in 1991. Thus, the appellant cannot claim any right to be considered for the appointment to the post of Executive Engineer (Civil) till 1991. It was not permissible to carry forward a reserved post till 1991/92. Thus when posts at point Nos. 16 to 25 were filled up by empanelled candidates, only one post at point 17 was reserved for Scheduled Tribes LPA NO.369/1999 Page No.19 candidate. The appellant was considered but Mr. Rajshekharan his senior was appointed. There was no carried forward or backlog of reserved schedule tribe point/post to be filled up. Thus the appellant was not rightly appointed/empanelled.
27. We do not think that reservation wrongly carried forwarded contrary to Rules and guidelines and should be deemed to be carry forward because of the mistake and error made by the first respondent. Carry forward of a reserved post depends upon on Rules, guidelines and the policy and was not dependent upon whims and fancies of the first respondent. Error or mistake in carrying forward of the reserved post though as per Rules and guidelines they could not be carry forward, will not confer any vested right on the appellant. The said mistake/error was corrected and rectified before appointments were made in 1991/1992.
In these circumstances, we do not find any merit in the appeal and the same is dismissed.
(SANJIV KHANNA) JUDGE (AJIT PRAKASH SHAH) CHIEF JUSTICE MARCH 30, 2009.
NA/P