THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE K.G.SHANKAR Writ Petition Nos.20494 and 23567 of 2004 COMMON ORDER (Per Sri Justice Ghulam Mohammed) Since both these writ petitions are filed challenging the order, dated 08.10.2004, passed in O.A.No.208 of 2002 by the Central Administrative Tribunal, Hyderabad Bench at Hyderabad (for short ‘the Tribunal’), they are being disposed of together by this common order. 2. For convenience, the parties hereinafter are referred to as they are arrayed in W.P.No.20494 of 2004. 3. The brief facts are that the second respondent-General Manager, Ordnance Factory Project (for short ‘the Factory’), selected the first respondent, who belongs to Scheduled Tribe Community, for the post of Fitter (Auto) Electrical against ST quota and intimated the same by letter dated 10.12.1997, asking him to submit his antecedent verification form. Accordingly, the first respondent submitted the same and police verification was also completed in the month of March, 1998. As there was no intimation about the appointment, the first respondent made several representations to the Factory, but in vain. Hence, he filed O.A.No.208 of 2002 before the Tribunal seeking to declare the action of the Factory in not giving appointment to him as per the selection held in October, 1995 to the post of Fitter (Auto) Electrical, as illegal and arbitrary. Through order dated 08.10.2004, the Tribunal allowed the O.A. directing the Factory to appoint the first respondent as Fitter (Auto) Electrical forthwith, who has already been selected, with all consequential benefits. In consequence of the said order, the petitioner was served with a show cause notice of termination, dated 22.10.2004, along with a copy of the order in O.A. Hence, the petitioner and the second respondent-Factory filed W.P.Nos.20494 and 23567 of 2004 respectively, challenging the order passed in O.A.No.208 of 2002. 4. Heard the learned counsel for the petitioner, learned counsel for the first respondent and the learned Standing Counsel for the second respondent-Factory. 5. Learned counsel for the petitioner contended that the Factory appointed the petitioner as Fitter (Auto) Electrical (SS) vide letter dated 05.11.1998, as he completed his apprenticeship course in 1996, but not against SC/ST vacancy. He further contended that the petitioner was declared as an approved probationer in the said post and was also promoted as Fitter (Auto) Electrical (SK) and at this stage, issuance of notice of termination on the basis of the order impugned, is illegal and arbitrary. He further contended that though the selection list was made on 24.10.1995, the first respondent made a representation on 25.07.2001 seeking his appointment only for the purpose of filing the O.A. He further contended that the Tribunal ought to have seen the office memorandum dated 02.07.2007, and it erred in setting aside the appointment of a general candidate i.e., petitioner against the fourth vacancy, though he is not made a party to the O.A. He also contended that the Factory without giving any opportunity to the petitioner, issued the show cause notice of termination based on the order impugned. 6. Learned counsel for the first respondent contended that the Factory in its counter categorically stated that SC and ST vacancies are filled consecutively, thus, when ST candidate by name B. Valya was terminated, SC candidate B. Pentaiah was appointed on 21.01.1997 and that in view of the death of B. Pentaiah, the first respondent, who belongs to ST Community, has to be appointed, but the Factory appointed the petitioner, who belongs to Open Category. He further contended that by virtue of the office memorandum dated 02.07.1997, post based roster is not applicable to the case of the first respondent as he was selected in 1995 and that the Tribunal has rightly directed the Factory to appoint him as Fitter (Auto) Electrical forthwith and the same need not be interfered with by this Court. He further contended that this Court vide order dated 18.07.2008, directed the Factory to consider the case of the first respondent for appointment to the post of Fitter (Auto) Electrical in Semi-skilled Grade in the existing vacancies as per rules without disturbing the petitioner, but the same was rejected by the Factory vide order dated 24.11.2008. He further contended that since 1995, the first respondent is without employment though he was selected and that as this Court by order dated 28.11.2008, directed the Factory to reserve one post of Fitter (Auto) Electrical in semi-skilled grade subject to the result of the writ petition, the case of the first respondent be considered for appointment in such vacancy. 7. Learned Standing Counsel for the second respondent- Factory submitted that even though the name of the first respondent was empanelled in the list at Sl.No.4, the select panel was made for filling up only two backlog vacancies and accordingly, appointed Sri N. Rambabu and Sri B.Valya, who belong to SC and ST respectively, and that consequent upon the termination of said B.Valya from service on 07.10.1996, the next senior candidate, by name, Sri B. Pentaiah (SC) was appointed and later, he died. He submitted that the said panel stands valid for one year only. He further submitted that as per the instructions issued by the Government vide office memorandum dated 02.07.1997, the vacancy based rosters have been changed to post based rosters in pursuance of the judgment of the Apex Court in R. K. SABHARWAL v. STATE OF PUBJAB[1], and according to it, preference has to be given to the trained apprentices and thus, the petitioner, who has completed his apprenticeship, was appointed in 1998 against the vacancy arisen on account of the death of B.Pentaiah. He further contended that the panel prepared in 1995 became inoperative in view of office memorandum dated 02.07.1997 and therefore, the first respondent is not entitled to the said post. He further contended that the Tribunal erred in ordering appointment of the first respondent against the vacancy as already filled by the petitioner and also setting aside his appointment though he is not a party to the O.A. Therefore, he prayed to remand the matter to the Tribunal for fresh consideration. He also contended that if the first respondent is appointed as per the order impugned, there is every likelihood of asking the employment by the individuals, who are on the same footing and thus, he prays to set aside the order impugned. 8. Admittedly, the name of the first respondent was empanelled at Sl.No.4 of the selected list against a backlog vacancy to be filled up by ST candidate as Fitter (Auto) Electrician in 1997 and the Ordnance Factory appointed the candidates at Sl.Nos.1 and 2 i.e., N. Rambabu and B. Valya against SC & ST quota. Consequent upon the termination of B. Valya, B. Pentaiah was appointed against SC quota and thereafter as the said B. Pentaiah died, the vacancy of ST candidate has arisen, but the Factory without appointing the first respondent against the said vacancy, appointed the petitioner by virtue of the office memorandum dated 02.07.1997. A perusal of the said memorandum clearly shows that the vacancy based rosters shall be replaced by post based rosters and that the orders shall be given effect from the date of issuance and that the selections which were already finalized, need not be disturbed and necessary adjustments in such cases could be made in future. Since the first respondent was empanelled at Sl.No.4 in the list prepared in 1997 i.e., before issuance of the said memo and selections have already been finalized, his status for appointment need not be disturbed. But the Factory without following the guidelines of the said memo, implemented post based reservation by appointing the petitioner disturbing the panel already finalized. Therefore, we are of the considered view that the first respondent is entitled to be appointed for the post he was selected. As such, the Tribunal has rightly allowed the O.A. as stated supra. 9. Now it is stated that no appointment has been given to the first respondent pursuant to the orders of the Tribunal as well as the interim direction of this Court in W.P.M.P.No.18303 of 2008, dated 18.07.2008, but rejected the same by order dated 24.11.2008 by the Factory. This Court, earlier by order dated 28.11.2008, directed the Factory to reserve one post of Fitter (Auto) Electrical in semi-skilled grade, which shall be accommodated to the first respondent, within a period of four weeks from the date of receipt of a copy of this order. 10. Accordingly, W.P.No.23567 of 2004 filed by the second respondent-Factory is dismissed setting aside the order impugned. In consequence thereof, the appointment of the petitioner need not be disturbed. Accordingly, W.P.No.20494 of 2004 is allowed to the extent of the appointment of the petitioner. No costs. _____________________ GHULAM MOHAMMED, J _______________ K.G.SHANKAR, J Date:16.06.2011 sj [1] AIR 1995 SC 1115