2007 Supreme(SC) 1041

2007(5) Supreme 796
Supreme Court of India
(From Punjab and Haryana High Court)
Tarun Chatterjee & P.K. Balasubramanyan,JJ.
Sonia — Petitioner
versus
Oriental Insurance Co. Ltd. & Ors. — Respondents
Appeal (Civil) 3521 of 2007
[Arising out of SLP [C] No.22070 of 2004]
Decided on : 07-08-2007

important point
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.

Headnote:Service Law – Promotion – Advertisement dated 30th October, 2003 notifying five vacancies out of which four were unreserved and one was reserved for a candidate belonging to Scheduled Tribes – Advertisement specifically mentioning that in case no eligible candidates are available in a particular reserved category, exchange of vacancies between these two categories was permitted – Later, by the Office Memorandum dated 6th November, 2003 the exchange of vacancies was barred – Appellant though being successful at the pre-selection examination, not being empanelled for interview on the basis of the O.M. – 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 – Therefore the Office Memorandum dated 6th November, 2003 would not apply to the selection process which started before the said Office Memorandum was issued by the respondents – Impugned judgment of High Court set aside. (Paras 7 to 9)

       (1990)3 SCC 157; (1990)1 SCC 411 – Relied upon.

       Facts of the case :

       The appellant who was a Scheduled Caste by birth had been working as Assistant [T] in the Oriental Insurance Company on and from 2nd January, 1997. Applications were invited from eligible and desirous employees for appointment to the post of Assistant Administrative Officer in terms of the promotional policy of the respondents. There were 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 were eligible to appear in the aforesaid test had also been allowed. It was also evident from the policy that if no eligible candidate was available in a particular category, an exchange of vacancy between Scheduled Caste and Scheduled Tribes categories could be allowed to the extent of non-availability of eligible candidates in a particular category. Advertisement was published on 30th October, 2003 and accordingly the appellant applied. There were in all five vacancies out of which one was reserved for candidates belonging to the Scheduled Tribes category and both Scheduled Caste and Scheduled Tribes candidates were eligible to compete for this reserved vacancy. Appellant was permitted to undergo a pre-examination training between 1st December, 2003 to 19th December, 2003 which was imparted to Scheduled Caste and Scheduled Tribes employees in accordance with the aforesaid promotional policy. The appellant was permitted to appear for the competitive examination held on 21st December, 2003 against the vacancy reserved for candidates belonging to Scheduled Tribes category. The name of the appellant appeared at Sl.No.23 in the list of successful candidates. Since her name had appeared in the list of successful candidates, the appellant claimed that she was entitled to be called for interview and considered for selection. A notice dated 27th February, 2004 was issued by the respondents that no exchange of vacancies between Scheduled Caste and Scheduled Tribes categories could be allowed even if no eligible candidate was available under either of the two categories in view of OM No.36012/17/2002-Estt.(Res) dated 6th November, 2003, clarifying that it was not permissible to fill a post reserved for Scheduled Tribes by a Scheduled Caste candidate or vice versa by exchange of vacancies between the two. Feeling aggrieved by refusal of the authorities to empanel the appellant for the interview, the aforesaid writ petition was filed before the High Court which 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.

       Findings of the Court:

       The O.M. Dated 6th November, 2003 does not have retrospective effect and therefore, appellant was entitled to be called for interview.

       Result: Appeal allowed.