Case: Sonia Vs. Oriental Insruance Co. Ltd.

between these two 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 of vacancies 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 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6th November, 2003 by which permission of exchange of reservation between Scheduled Caste and Scheduled Tribes was withdrawn, was issued at a time when candidates including the appellant had already acted on the basis of the advertisement dated 30th October, 2003 in which permission was granted for exchange of reservation between Scheduled Caste and Scheduled Tribes. 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 Scheduled Caste candidates by exchange of reservation or 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 Caste candidates by exchange of reservation before issuance of this Office Memorandum need not be disturbed. As noted herein earlier, applications 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 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 no retrospective effect has been given to the said Office Memorandum. In N.T. Devin Katti vs. 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 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 a particular category an eligible candidate was not available, exchange of vacancies between the two categories was permitted. The 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 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 vs. Karnataka Public Service Commission [1990[3] SCC 157], we are of the view that OM dated 6th November, 2003 cannot have any retrospective effect and the date on which the applications were invited should be the relevant date for consideration whether exchange of Scheduled Caste and Scheduled Tribes candidates was permissible. The decision in the case of N.T. Devin Katti vs. 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 Ors. vs. State of Karnataka and Ors. [1990 [1] 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 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 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 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 Memorandum will not be applicable in the case of 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. 9. For the above reasons, we

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 Memorandum will not be applicable in the case of 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.