IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTEENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH and THE HON'BLE SRI JUSTICE P.SWAROOP REDDY WRIT PETITION NO : 1688 of 2000 Between: 1. The Joint Secretary Department of Space, ISRO, Antariksha Bhavan, ISRO Head Quarters, New BEL Road, Bangalore-560 094. 2. Head, Personal and General Administration Dept. of Space, Antariksha Bhavan, ISRO Head Quarters, New BEL Road, Bangalore-560 094. 3. The Controller, SHAR Centre, Srihari Kota, Nellore District. ... PETITIONERS And 1 Ch.Prasad, Stote Asst-B, SC.No.X-11566, SCF, Central Stores, SHAR Centre, Sriharikota-524 124, Nellore District. 2 Smt.Sawraswathi Kumar Asst. Stores Officer, ISRO Satellite Centre (ISAC), Airport Road, Vimanapura PO, Bangalore - 560 017. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate Writ, Order or Direction more particularly one in the nature of writ of certiorari calling for the records on the file of the Hon'ble Central Administrative Tribunal, Hyderabad Bench, in OA.No.647/98 and quash the order Dt.15/9/1999 in the said O.A. Counsel for the Petitioner: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondents: MR.BANKATLAL MANDHANI The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH and THE HON'BLE SRI JUSTICE P.SWAROOP REDDY WRIT PETITION No.1688 of 2000 ORDER: (per the Hon’ble Sri Justice V. Eswaraiah) This Writ of Certiorari is filed by the Department of Space, ISRO and SHAR Center aggrieved by the order dated 15.09.1999 passed by the Central Administrative Tribunal, Hyderabad Bench (hereinafter referred to as “the Tribunal”), in allowing O.A.No.647 of 1998 filed by the first respondent directing the petitioners herein to consider his case for promotion to the post of the Assistant Stores Officer in accordance with the panel issued on 02.12.1996 and in accordance with law as and when his turn comes against Scheduled Tribe (hereinafter referred to as “ST”) quota. The first respondent herein was appointed as Stores Assistant-B and the next promotion is the Assistant Stores Officer. He appeared for the interview on 29.11.1996 and a panel dated 06.12.1996 was issued on the basis of the interviews. His name was shown at Sl.No.2 under the relaxed standard against ST quota. Though he was empanelled for the said post as against the ST quota roaster point, Smt. Saraswathi Kumar, the second respondent herein who was the 4th respondent in the O.A., was selected in the general category and promoted against the ST quota. The first respondent denied the said promotion on the ground that Smt. Saraswathi Kumar though being a ST candidate she was appointed under general category and occupied the post earmarked for ST quota. Questioning the said action, the 1st respondent herein filed the said O.A. The contention of the first respondent/applicant is that Smt. Saraswathi Kumar secured much more marks than the qualified marks of 60 and she was selected as a general candidate under general quota. But her selection was erroneously shown against ST quota. It was the contention of the petitioners before the Tribunal that the total posts of Assistant Stores Officer were 25, out of which 3 posts were earmarked for SC candidates and one post was earmarked for ST candidates. Three SC candidates were selected as against their roaster point. But in so far as the post earmarked for ST candidates is concerned, though Smt. Saraswathi Kumar was appointed on merit under general category, her promotion was shown as against the ST category as per the so-called post based roster system issued in Office Memorandum, (DOP & T) dated 02.07.1997. Accordingly, as per the Office Memorandum dated 02.07.1997, Smt. Saraswathi Kumar who was appointed on merit was shown under ST category and there was no further ST vacancy. Therefore, though the first respondent is qualified for the said post he could not be accommodated. The Tribunal considered the said contention of the writ petitioners that as per the Office Memorandum dated 02.07.1997, which was clarified by DoP & T by its letter dated 08.09.1998, the first respondent is not entitled for promotion under the ST quota as respondent No.2 herein was already promoted against ST quota even though she was recruited under the general category. The Office Memorandum issued cannot have any retrospective effect to deny the benefits already possessed by the employees in the normal course. The Tribunal held that as per the law laid down by the Apex Court in various judgments, the panel as prepared as per the existing Rules and guidelines as on 02.12.1996, the same cannot have any change in view of the subsequent Office Memorandum dated 02.07.1997. The Tribunal further held that as per the existing rules and as per the panel prepared as on 02.12.1996, the benefit, which the first respondent is entitled for the promotion, cannot be denied. Accordingly the O.A. was allowed as indicated above. Heard both sides. The learned Assistant Solicitor General appearing for the petitioners submits that a candidate belonging to reserved quota if got selected in open and merit competition, his/her appointment and selection should be treated as selection and appointment from the reserved quota. We are of the opinion that as per the Judgment of the apex Court in the case of R.K. Sabarwal and others V. State of Punjab[1], the reserved category candidate can also compete for the non-reserved posts and in the event of his/her appointment to the said posts, the number of posts earmarked for the reserved category cannot be reduced and the reserved candidates selected in the general category cannot be taken into consideration for working out the percentage of the reservation. The prescribed percentage cannot be varied or changed simply because some of the members of the reserved category have already been appointed/promoted against the general seats. The roaster point, which is reserved for a reserved category, has to be filled by way of appointment/promotion of a member of the said reserved category. No general category candidate can be appointed against the slot in the roaster, which is reserved for the reserved category. The fact is that the reserved candidates who have been appointed/promoted in the general quota cannot be taken into reserved quota. Therefore, we are unable to accept the contention of the learned counsel for the petitioners that the department rightly denied the first respondent/applicant for promotion to the post of Assistant Stores Officer as the second respondent was already occupied the said post though she was selected in general quota. We are of the opinion that admittedly as on the date of empanelment under the existing rules, a particular post was reserved for ST candidates and the first respondent was alone entitled for the said promotional post and the promotion of the second respondent who was selected on merit under the general category cannot be treated as against ST quota, and therefore, we do not see any infirmity legal or otherwise in the impugned order of the Tribunal. The Writ Petition is accordingly dismissed. No order as to costs. ________________ V.ESWARAIAH, J ______________________ P. SWAROOP REDDY, J 13th July, 2009 Md/Dsr [1] AIR 1995 Supreme Court 1371