SUPREME COURT OF INDIA

Before:- G.B. Pattanaik and B.N. Agrawal, JJ.

Civil Appeal No. 2531 of 1998. D/d. 20.2.2001

B. Manmad Rao - Appellant

Versus

Regional Engineering College, A.P. - Respondents

Constitution of India, Articless 14, 16 and 226 - Appointment - Reserved post - De-reservation - Appellant a general candidate was appointed against a seat reserved for scheduled caste on temporary basis on condition of services being terminated on availability of scheduled caste candidate - In 1990 services of appellant were terminated on appointment of a scheduled caste candidate - Learned single Judge allowed the petition of appellant which order was set aside by the Division Bench - Order challenged - Contention that as per circular of 1974 the reservation must be held to have lapsed on expiry of 3 years of same being carried forward - Circular of 1974 lays that a general category candidate can be appointed only on approval of appropriate authority to de-reserve the post - Held, since the appointment of appellant is without de-reservation or approval of appropriate authority, the very appointment is itself illegal - Appeal dismissed accordingly.

[Para 2]

ORDER

G.B. Pattanaik, J. - This appeal is directed against the judgment of the Division Bench of Andhra Pradesh High Court allowing an appeal against the judgment of the learned single Judge. The appellant was a general category candidate. In pursuance to an advertisement issued in January 1986 for the post of Junior Library Assistant, he applied for the same on 1st February, 1986. He appeared in the interview on 22nd March, 1986 and was appointed on 16th April, 1986. In the order of appointment itself, it was indicated that the appointment is purely temporary and terminable and that appointment is being made against the vacancy reserved for scheduled caste candidate subject to condition that his services will be terminated as and when the schedule caste candidate is available, and selected for appointment as a Junior Library Assistant. He continued on the basis of the aforesaid appointment letter till 18.9.1990 when his services stood terminated and a scheduled caste candidate was appointed in his place, who is respondent No. 2. The appellant challenged the order of termination in the High Court contending, inter alia, that in accordance with the circular of reservation dated 7th October, 1974, the so- called reservation must be treated to have lapsed on expiry of 3 years from the date of the appointment of the appellant, and therefore, his services could not have been terminated. The learned Single Judge of the High Court was persuaded to accept the submission and allowed the writ petition. On an appeal being carried, the Division Bench has interfered with the order of the learned Single Judge. The Division Bench has construed the aforesaid circular of the Department of Personnel dated 7.10.1974 and the entire scheme dealing with procedure of de-reservation. The Division Bench has come to the conclusion that the very appointment of the appellant on 6.4.1986 was illegal since no prior approval of the governing body or the executive council had been obtained before appointing the appellant, a general category candidate, though the post was intended for a scheduled caste candidate. The Division Bench also further came to hold that the subsequent office Memo dated 25th April, 1989 prohibiting the de-reservation with effect from 1.4.1989, and therefore taking any view of the matter, the order of termination could not have been interfered with. The appeal having been allowed, the present appeal has been preferred.

2. Mr. L.N. Rao, the learned senior Counsel appearing for the appellant contends that the Division Bench of the High Court committed error in construing the circular of the Government, and on the basis of 1974 circular assuming that there was no prior approval of the governing body de-reserving the post and filing up by a general category candidate, but on expiry of 3 years, the same having been carried forward, the reservation must be held to have lapsed, and therefore there as no justification in terminating the services of the appellant on 18.9.1990. Mr. Rao further contended that the circular of the year 1989 indicates that it came into force on 1.4.1989 in respect of all direct recruitment to be made to fill up vacancies in group A, B. C and D and the ban has no application to the reserved vacancies of the earlier year, which have already been filled up by the other community candidates whether such vacancies have been de-reserved and therefore in the case in hand, admittedly the vacancies having been filled up by the appointment of the appellant, a general category candidate, the 1989 circular will have no application. To examine the correctness of the submission, we have ourselves scrutinies the two circulars, one of 1974 and the other of 25th April, 1989. It appears that even under the scheme of 1974 circular as against a post meant for reserved category, a general category candidate could be appointed only when there is prior approval of appropriate authority mentioned in the circular for de-reservation, and notwithstanding the said appointment of general category candidate, the reservation will be carried forward to three subsequent recruitment years before they could be treated as elapsed, and even in the third year, it contemplates that the reservation will be carried forward to three subsequent recruitment years before they could be treated as elapsed, and even on the third year, it contemplates that the reservation if is for scheduled caste could be filled up by scheduled tribes and vice-versa. The obvious idea behind the aforesaid order is that f a post meant for reserved category candidate could not be filled up by general category unless and until the condition-precedent in the circular are complied with. In the case n hand, unfortunately, without an order of de-reservation or approval of the appropriate authority, as required under the circular, the appointment came to be made in favour of the appellant, who happened to be a general category candidate. The very appointment itself therefore was contrary to the aforesaid circular in question. Now, assuming that the reservation lapses in April 1989 since the appellant was appointed on 16th April, 1986, the subsequent Memo of 1989 came into existence, which unequivocally indicates that the question of lapse of reservation would not arise. In other words, there would be no de-reservation of the post once that post is reserved under any rules or administrative instructions. This being the position, it is difficult for us to hold that the appellant, who himself was appointed contrary to the rules in force, can be said to have acquired any right nor is it possible for us to hold that the post itself stood excluded from reservation again which a general category candidate could have been appointed. Thus, apart from the nature and terms of appointment indicated in the appellant's appointment letter, which does not confer a substantive right on the appellant to the post, in the case in hand, the post being one meant for reserved category candidate, the appropriate authority was justified in terminating the services of the appellant the moment a reserved category candidate like respondent no. 2 was made available. We, therefore, see no infirmity with the impugned judgment of the Division Bench so as to be interfered with by this Court. The appeal accordingly fails and is dismissed.

3. Mr. Rao says that the appellant has not yet been appointed anywhere else and his case may be considered, if any vacancy arises in future. Having regard to the facts and circumstances of the case, it would be open for the authority to consider his case by condoning the age, if he is found otherwise suitable.

Appeal dismissed.