Holding

An Office Memorandum cannot have retrospective effect and does not apply to a selection process already commenced; therefore, the appellant is entitled to be empanelled for interview.

Summary

The Oriental Insurance Company advertised five Assistant Administrative Officer vacancies on 30 October 2003, reserving one for Scheduled Tribes (ST) but allowing exchange of reservations between Scheduled Castes (SC) and ST where no eligible candidate existed. Sonia, an SC employee, applied, underwent training, sat the competitive exam and was listed among successful candidates for the ST‑reserved post. On 6 November 2003 the Company issued an Office Memorandum withdrawing permission for such exchanges, and subsequently refused to call Sonia for the interview. The High Court dismissed her writ petition, holding that no legal right was infringed. The Supreme Court held that the Office Memorandum could not have retrospective effect on a selection process already initiated by the advertisement, and therefore did not apply to Sonia’s case. Consequently, the Court directed the Company to empanel Sonia for the interview and consider her for appointment if selected. The appeal was allowed.

Issues considered

Whether an Office Memorandum withdrawing permission for exchange of reservations between SC and ST can have retrospective effect on a pending selection process.
Whether the appellant, a SC candidate, is entitled to be empanelled for interview for a vacancy reserved for ST under an advertisement that permitted such exchange.
Whether the High Court erred in dismissing the writ petition on the ground of the Office Memorandum.

Subjects

reservationscheduled castesscheduled tribesexchange of vacanciesoffice memorandumretrospective effectrecruitmentselection processservice lawadministrative law

Judgment

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SONIA A
v.
ORIENTAL INSURANCE CO. LTD. AND ORS.

AUGUST 7, 2007

[TARUN CHATTERJEE AND P.K. BALASUBRAMANYAN, JJ.] B'

"t"--
Service law:

Selection-Selection process initiated by Respondents-Advertisement
issued on 30-10-03 inviting applications-One vacancy reserved for STs- c
Advertisement permitted exchange of reservation between SCs and STs, hence,
both SCs and STs were eligible to compete for this reserved vacancy-
Appellant, SC by birth, appeared for competitive examination against the
vacancy reserved for STs and listed as a successful candidate-But not called
for interview for selection purposes in view of O.M dated 6-11-03 issued by D
,. Respondents by which permission of exchange of reservation between SCs
j
and STs was withdrawn-Writ petition filed by Appellant dismissed by High
Court-On appeal, held: O.M. dated 6-11-03 was issued at a time when
candidates including Appellant had already acted on the basis of
advertisement-Also no retrospective effect given to the O.M.-Appellant
governed by the date on which applications were invited, i.e. on 30-10-03- E
0. M will not be applicable in case of Appellant and to the pending process
of selection, hence, Appellant would be entitled to be empanelled to appear
before the Interview Board.

On 30th October, 2003, Respondents issued advertisement notifiying .
vacaneies for appointment to the post of Assistant Administrative Officer F
' (AAO). Out of the five vacancies notified, one vacancy was reserved for
Scheduled Tribes. Since the advertisement specifically permitted exchange
of reservation between Scheduled Castes and Scheduled Tribes, both
Scheduled Caste and Scheduled Tribe candidates were eligible to compete for
this reserved vacancy. Appellant, who is Scheduled Caste by birth, was G
permitted to appear for the competitive examination against the reserved
vacancy. Her name appeak ~d in the list of successful candidates, however, she
\
was not called for interview and not considered for selection in view of O.M.
No.36012/17/2002-Estt.(Res) dated 6th November, 2003 issued by the

883 H
884 SUPREME COURT REPORTS [2007] 8 S.C.R.

A Respondents by which permission of exchange of reservation between
Scheduled Castes and Scheduled Tribes was withdrawn. The said O.M.
provided that a post reserved for Scheduled Tribes could not be filled up by a
Scheduled Caste candidate or vice versa by exchange of vacancies between
the two.

B Appellant filed writ petition before the High Court for a direction upon
the Respondents to consider her case against the vacancy reserved for
Scheduled Tribe candidates. High Court dismissed the writ petition holding
that no legal right of the Appellant have been infringed for not empanelling
her as a successful candidate to appear before the interview Board set up by
C the Respondents. Hence the present appeal.

Allowir.g the appeal, the Court

HELD: 1.1. The Office Memorandum dated 6th November, 2003 by which
permission_ of exchange of reservation between Scheduled Caste and Scheduled
D Tribes was withdrawn, was issued at a time when candidates including the
appellant had already acted on the basis of the advertisement dated 30th
October, 2003 in which permission was granted for exchange of reservation
between Scheduled Caste and Scheduled Tribes. 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
E found to be a successful candidate in the said examination.
(Para 7) (888-B; 889-A)

1.2. Law is well settled that an Office Memorandum cannot have a
retrospective effect unless and until intention of the authorities to make it as
F such is revealed expressly or by necessary implication in the Office
Memorandum. The Office Memorandum dated 6th November, 2003 cannot have
i
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 30th October, 2003 and also for
the reason that no retrospective effect has been given to the said Office
G Memorandum. [Para 7) (889..C-D; 888-E-F[

1.3. On a plain reading of Clause (6) of the Cmce Memorandum dated
6th November, 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
I
H
SONIA v. ORIENTAL INSURANCE CO. LTD. [TARUN CHATTERJEE, J.) 885
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( ...; Memorandum, such cases need not be re-opened. This clause would clearly A
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. A close examination of clause
(6) of the Office Memorandum dated 6th November, 2003 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 B
been given. (Para 7) (888-C-D; 889-D-El
t.
1.4. 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. (Para 7) [889-E-F)
c
N. T. Devin Katti v. Karnataka Public Service Commission, (1990) 3 SCC
157 and P. Mahendran and Ors. v. State of Karnataka and Ors., (1990) l SCC
411, relied on.

2. In view of the above, the High Court was not justified in dismissing
D
the writ petition of the appellant only on the ground that in view of Office
J' Memorandum dated 6th November, 2003, no legal right of the appellant was
infringed. Since, the Office Memorandum will not be applicable in the case
of the appellant and to the pending process of selection, the appellant would
be entitled to be empanelled to appear before the Interview Board for selection
to the post of Assistant Administrative Officer. The respondents are directed E
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. (Paras 8 and 9) (889-G-H; 890-A-Bl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3521 of 2007. F
1-

From the Judgment and Order dated 23.8.2004 of the High Court of
Punjab and Haryana at Chand.igarh in Civil Writ Petition No. 4644 of 2004.

Mahalakshmi Pawani, G. Balaji (for M/s. Mahalakshmi Balaji & Co.) for
the Appellant. G
Vishnu Nehra Mehra and B.K. Satija for the Respondent.
\

The Judgment of the Court was delivered by

TARUN CHATTERJEE, J. I. Leave granted. H
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886 SUPREME COURT REPORTS [2007) 8 S.C.R.

A 2. This appeal is directed against the Judgment and order dated 23rd
August, 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.

B 3. A writpetition 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 .c.r
Scheduled Tribe candidates. A further direction was also prayed by the
appellant to the extent that the respondents should keep one vacancy reserved
C for the appellant who had competed and was found s~ccessful 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:

5. The appellant who is a Scheduled Caste by birth has been working
D 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 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
E 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
F Tribes categories can 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 on the basis of the said
advertisement to the post of Assistant Administrative Officer. 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
G Tribes candidates were eligible to compete for this reserved vacancy. The
appellant was permitted to undergo a pre-examination training between lst
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
H examination held on 21st December, 2003 against the vacancy reserved for
---
SONIA v. ORIENTALINSURANCE CO. LTD. [f ARUN CHATTERJEE, J.] 887
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..J candidates belonging to Scheduled Tribes category. The name of the appellant A
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 B
categories in view of OM No.36012/17/2002-Estt.(Res) dated 6th November,
-t;:-_ 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 C
High Court which, as noted herein earlier, 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.

6. It is this order of the High Court which the appellant has challenged D
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 E
the writ petition of the appellant as noted herein above, was dismissed solely
on the ground that in view of OM dated 6th November, 2003, the exchange
of vacancies between Scheduled Caste and Scheduled Tribes categories was
not permissible. Before we take up this question for our decision, we may
note that the respondents on 30th October, 2003, notified the number of F
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 G
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 ofvacancies 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 H
888 SUPREME COURT REPORTS [2007] 8 S.C.R.

A 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 Tribes categories can be allowed to the
extent of non availability of eligible candidate in a particular category. It may
also, at this stage, be noted that the Office Memorandum dated 6th November,
B 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
.. _l.
~
advertisement dated 30th October, 2003 in which permission was granted for
exchange of reservation between Scheduled Caste and Scheduled Tribes.
C Even on a plain reading of clause [6] of the Office Memorandum dated 6th
November, 2003, it can ·be seen that in case some posts reserved for Scheduled
Tribes might have been filled by S~heduled Caste candidates by exchange of
reservation 9r vice versa before issuance of the said Office Memorandum,
such cases need not be re-opened. This clause would clearly show that the
posts reserved for Scheduled Tribes which have been filled by Scheduled
D Caste candidates by exchange of reservation before issuance of this Office
Memorandum need not be disturbed. As noted herein earlier, applications J
were invited by the respondents on 30th October, 2003 whereas the Office
Memorandum withdrawing permission of exchange of vacancies between
Scheduled Caste and Scheduled Tribes candidates was issued on 6th
E November, 2003. Let us now, therefore, consider whether this Office
Memorandum could have a retrospective effect or not. In our view, the Office
Memorandum dated 6th November, 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 30th October , 2003 and also for the reason that
F no retrospective effect has been given to the said Office Memorandum. In
N. T. Devin Katti v. Karnataka Public Service Commission, [ 1990] 3 SCC 157
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
G 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. In the present case, admittedly, while inviting applications,
respondents advertised the number of vacancies required to be filled under
various categories. Notice inviting application also mentioned that if under
H a particular category an eligible candidate was not available, exchange of
SONIA v. ORIENTAL INSURANCE CO. LTD. [TARUN CHATTERJEE, J.] 889

vacancies between the two categories was permitted. The appellant acted on A
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 the case of N. T. Devin Katti
v. Karnataka Public Service Commission, (1990] 3 SCC 157, we are of the
view that OM dated 6th November, 2003 cannot have any retrospective effect B
and the date on which the applications were invited should be the relevant
date for consideration whether exchange of Scheduled Caste and Scheduled
·-t::"-
Tribes candidates was permissible. The decision in the case of N. T. Devin
Katti v. Karnataka Public Service Commission, (1990] 3 SCC 157 has also
been echoed by a decision of this· Court in the case of P. Mahendran and C
Ors. v. State of Karnataka and Ors., [1990] I SCC 411. 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
herein above, we find that the candidates who had already been selected, the D
case of such candidates would not be re-opened. A close examination of
clause [6] of the Office Memorandum dated 6th November, 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 E
laid down by the aforesaid two decisions of this Court, the Office Memorandum
dated 6th November, 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 17th February, 2004 well F
after the Office Memorandum was issued by the respondents.

8. 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 6th November, 2003, no legal right
of the appellant was infringed. Since, we have already held that the Office G
Memorandum will not be applicable in the case 'lf 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.
H
. ~-

890 SUPREME COURT REPORTS (2007) 8 S.C.R.

A 9. For the above reasons, we set aside the Judgnient of the High Court :i..
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.
B
B.B.B. Appeal allowed. ·

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