S. Ramesh Rao vs Bharat Heavy Electricals Ltd. and Others

The writ petition is filed for the issue of a writ of certiorari calling for the records relating to the impugned Proceedings No. PA/W8/8006/86, dated 17th March 1986 issued by the 3rd respondent and to quash the same.

The petitioner in this case is an Advocate, belonging to the Scheduled Caste community, who has put in a period of three years as a practising advocate. The brief facts leading to the filing of the writ petition are that Bharat Heavy Electricals Limited, Ramachandrapuram Unit, Respondent No. 1 herein, which is a Government of India undertaking, had issued a notification in several English dailies dated 10th August 1985 calling for applications for the post of one Law Officer. The last date for receipt of applications was notified as 6th September 1985. It is alleged by the petitioner that about 70 applications were received by the 3rd respondent, the Additional General Manager, Personnel and Administration, Ramachandrapuram, Hyderabad and about 30 candidates appeared for the oral interview held in October 1985. Subsequently appointment orders dated 17th March 1986 were issued to respondents 5 to 7 appointing them as Law Officers as against one post advertised in the month of August 1985. The contention of the petitioner is that the advertisement was made only for one post and three appointment letter were issued by the respondent-Company in violation of the terms of the notification itself. If more than one post was to be filled up, then, it is alleged, that at least one post should be reserved for SC/ST candidates. The petitioner challenges the above appointments as being against the recruitment rules, particularly Rule 11.8.1 which lays down the procedure for advertisement and also guidelines to be followed by the respondent-Company while advertising the posts and filling them. It is also alleged that recruitment Rule 7.1 has also been given a go-by in so far as it provides that it shall be the endeavor of the Company to help the Government in achieving its objects in respect of upliftment of the socio-economic status of those belonging to weaker sections of the society. The Company shall not spare any efforts to adhere to and follow the directives of the Government concerning reservation of vacancies and concessions allowed to candidates belonging to Scheduled Casts/Scheduled Tribes etc. It may be stated here itself that the petitioner himself was not an applicant in response to the notification issued as indeed he has not completed the required five years of practice as a legal practitioner which would have qualified him to apply for the post of Law Officer, as advertised by the Company. The orders of appointment are challenged inter alia as being in violation of Articles 15(4) and 16(4) of the Constitution of India as the rule of reservation has not been followed. The petitioner, apart from being an advocate of three years standing, projects himself as a social worker adumbrating the cause of the weaker section, particularly those of Scheduled Castes/Scheduled Tribes.

In the counter affidavit initially filed by the Respondent-Company in this case the stand taken by the Company in a nutshell is to the effect that the petitioner does not have the necessary locus standi to file the writ petition as he is neither an applicant nor qualified person to apply for the said post of Law Officer. It is stated in the counter affidavit that the appointment offers were issued to three candidates as per the selection panel, vide Reference No. PA/W8/8006/86, dated 17th March 1986 in favour of Sri T. Viswanatha Sastry, Sri A. Madhusudhana Rao and Mrs. K. Sita. Further, it is admitted that even though the advertisement was initially made only for one post of Law Officer, taking into consideration the increased work load in the Legal Department it was considered appropriate to issue offers to three candidates. The answer given with regard to the question of reservation in the first counter affidavit is that as regards the reservation for SC/ST., the post of Law Officer being one right from the inception of the Company, it was treated as unreserved. In the executive cadre the direct recruitment to El and above grades being less, One roster is maintained for direct recruitment to the posts in the Executive Cadre as posts of small cadre strengths are grouped together. The roster maintained for the direct recruitment to the posts, such as Personnel Officer, Commercial Engineer, Medical Officer etc., is the same, in order to effectively implement the rule of reservation on a comprehensive basis. In accordance with the directives, small cadres, numbering less than 20 posts can be grouped together. When three posts of Law Officers were intended to be operated, a consequential reservation would have been carried forward while making recruitments to any other posts in the same roster as stated above. Hence, it is contended that by appointing the three candidates the rule of reservation was not ignored but it would have been taken care of in the combined roster by carrying forward any reservations arising therefrom. In this view of the matter the positive stand taken by the respondent Company is that there has been no violation of Articles 15(4) and 16(4) of the Constitution of India. Furthermore, it is stated that after the scrutiny of all the applications received, as no SC candidates were eligible for consideration, it was felt not necessary to have any SC Member in the Selection Board. It may also be stated that even though the offers of appointment were issued to three candidates, the first candidate Sri T. Viswanatha Sastry did not give his acceptance and sought for extension of time for one month. The second candidate Sri. A. Madhusudhan Rao had communicated his acceptance but he also sought for extension of time for joining the post. The third candidate Mrs. K. Sita communicated her acceptance to the offer and after undergoing medical examination, it seems, she had joined the post after two weeks from the date of her appointment.

By an order in W.P.M.P. No. 4657/86 dated 28th March 1986 the operation of the proceedings No. PA/W8/8006/86 dated 17th March 1986 was suspended pending further orders on the petition. Later on, on 21st October 1986 the said order of suspension was modified mainly on the ground that the petitioner himself was not eligible to apply for the post as he has not completed five years of standing at the bar and since he was not an applicant it would be inequitable to suspend the entire selection made by the company. The interim order of suspension granted earlier on 28th March 1986 was, therefore, modified so as to permit the 2nd respondent to fill up one post advertised for from amongst the selected candidates.

The next crucial aspect of the matter may now be taken up which has come into being during the final hearing of the writ petition. An additional counter affidavit has been filed on behalf of respondents 1 and 2 stating that even though keeping in view the magnitude of the legal work, the Management of the Respondent-Company decided to operate three posts of Law Officers instead of one post advertised, only one person, viz., the 7th respondent, has been appointed to the post of Law Officer and she is now functioning as such from 5th of December 1986 onwards. More over, since some alternative arrangements have been made in order to cope up with the exigencies of legal work, the Management has given up the idea of operating the other two posts of Law Officers in the Near future or filling up the same from among the candidates selected in the year 1985. The up-shot of this contention is that the respondent-Company is now content with the appointment of only one person viz., the 7th respondent, as the Law Officer and has given up the idea of appointing the other two persons. The further contention raised in the additional counter affidavit it is that the single recruitment that has been done for the post of Law Officer in the year 1985 is the very first recruitment in BHEL Unit of Ramachandrapuram. The previous incumbent of the post of Law Officer was not directly recruited but he was promoted departmentally from supervisory cadre in the year 1972. The person so drafted retired in November 1985 and a consequential vacancy has arisen for which the advertisement in question had been issued. Since the post and vacancy is a single one, it should be treated as unreserved as per the rules.

It is thus clear that this matter will have to be dealt with on the basis of the position obtaining as stated in the additional counter affidavit. It is categorically stated in the said counter affidavit that the company is not going to appoint the other two persons, apart from respondent No. 7 who has taken charge on 5th December, 1986. It is further asserted that this single appointment is being made for the first time and, therefore, the vacancy has to be treated necessarily as an unreserved vacancy.

In order to appreciate the contentions raised by both the parties it is necessary to refer to the Recruitment Rules promulgated by the respondent-Company dealing with the question of recruitment, reservations, promotions etc. Under Rule 3 of the Recruitment Rules it is provided that in order to give proper effect to the reservation prescribed, every appointing authority shall treat the vacancies as reserved or unreserved according to a model roster, each consisting of 40 point/100 points, as the case may be. Hence, the rosters as given in Appendix I, II and III are being maintained by the respondent-Company. Under Rule 6 grouping of posts is provided wherein it is stated that in the case of isolated individual posts and small cadres in which vacancies may not occur with sufficient frequency to represent the Scheduled Castes and Scheduled Tribes, posts in the same group and carrying similar status, salary and qualifications, may be grouped to facilitate the application of the reservation orders. A cadre or a grade or division of service consisting of less than 20 posts may be treated as small cadre for this purpose. A group so formed should not ordinarily consist of less than 25 posts. It may not be necessary to go into the other details of the conditions under which the grouping of posts can take place because the point involved in this writ petition is altogether a different one, as it emerges from a reading of the additional counter-affidavit filed in this case. However, it may be noticed that under Rule 7 a procedure for de-reservation has been provided. It may not be out of place to reproduce the relevant part of Rule 7 to make the point clear in this matter, which is in the following terms :

"7. Procedure for de-reservation :- Before any reserved vacancy is de-reserved and filled up by a general candidate, the prior approval of the Board of Directors for Group ''A'' and ''B'' posts and that of the Managing Director for Group ''C'' and ''D'' posts should be obtained. The Board of Directors should be apprised from time to time the number of Group ''C'' and ''D'' vacancies de-reserved. The contingency for de-reserving a reserved vacancy would arise only when suitable candidates of the reserved community are not available or forthcoming."

Under Rule 7(A)(a) advertisement of reserved vacancies filled by recruitment otherwise than through examination for SC/ST candidates only is provided Rule 7(A)(b), (c) and (d) deal with various questions of re-advertisement for filling reserved vacancies, advertisement where recruitment is to be made both for reserved and unreserved vacancies and direct recruitment through examination etc. Under Rule 8(A) the principle of carrying forward and lapse of reservations is provided in the following terms :

"8. (A) Carrying forward and lapse of reservations :- If a sufficient number of suitable candidates eligible for reserved vacancies is not available from the respective classes in a particular year, such vacancies may be treated and filled as unreserved vacancies during that year subject to the approval of the Board of Directors or Managing Directors, as the case may be, for de-reserving the reserved vacancies. Such under-recruitment in the number of Scheduled Castes and Scheduled Tribes will be carried forward up to three subsequent recruitment years before the reservation is finally treated as lapsed. However, in any recruitment year, the number of current reserved vacancies and the carried forward vacancies put together shall not exceed 50% of the total vacancies filled in that year. The surplus, if any, above 50% when the ceiling of 50% is applied, shall be carried forward to the subsequent year of recruitment, subject, however, to the condition that the particular vacancies carried forward do not become time-barred due to their becoming more than three years old. The carried forward reserved vacancies would be available together with the current reserved vacancies for utilisation even where the total number of such reserved vacancies exceeds 50% of the vacancies filled in that year provided, however, the overall representation of Scheduled Castes and Scheduled Tribes in the total strength of the concerned grade or cadre is found to be inadequate i.e., the total number of Scheduled Caste/Scheduled Tribe candidates in that grade has not reached the prescribed percentage of reservation for Scheduled Castes/Scheduled Tribes respectively, in the grade, as a whole."

Similarly under Rule 8(B) reservation and carry-forward of a single vacancy arising in a year is provided in the following terms :

"8. (B) Reservation and carry-forward of a single vacancy arising in a year :- In cases where only one vacancy occurs in the initial recruitment year and the corresponding roster point happens to be for a Scheduled Caste or a Scheduled Tribe, it should be treated as unreserved and filled accordingly and the reservation carried forward to subsequent 3 recruitment years, but in the subsequent recruitment year(s), even if there is only one vacancy, it should be treated as "Reserved" against the carried forward reservation from the initial recruitment year, and a Scheduled Caste/Scheduled Tribe candidate if available, should be appointed in that vacancy, although it may happen to be the only vacancy in that recruitment year(s).

While vacancies reserved for Scheduled Castes and Scheduled Tribes may continue to be treated as reserved for the respective community only, Scheduled Tribe candidates should be considered for appointment against a vacancy reserved for Scheduled Caste candidates where such vacancy could not be filled by a Scheduled Caste candidate even in the third year to which the vacancy is carried forward. While advertising or notifying a vacancy which has been carried forward to the third year, it should therefore be made clear in the advertisement/requisition that while the vacancy is reserved for Scheduled Caste, Scheduled Tribe candidates would also be eligible for consideration in the event of non-availability of suitable Scheduled Caste candidate. The arrangement will likewise apply also in the case of vacancies reserved for Scheduled Tribes."

The crucial question arising in this case is, therefore, to be seen in the perspective of the provisions of Rule 8(A) and Rule 8(B) of the Recruitment Rule, more particularly Rule 8(B). It is not denied that this is a case of filling up of only one vacancy. Therefore, the provisions of Rule 8(B) apply on all fours to arrive at a conclusion whether there has been any infringement of rule of reservation by the respondent-Company in this regard. It is an accepted fact that the single vacancy arising happens to fall in the roster point as reserved vacancy for a Scheduled Caste/Schedule Tribe candidate. That being so, it is patently clear that under Rule 8(B) it should be treated as unreserved and filled accordingly. Since it happens to be a single vacancy coinciding on the roster point as a reserved vacancy it is necessarily treated as an unreserved vacancy. The question whether this is the initial appointment or the second appointment to such a vacancy will be dealt with later. But, for the sake of clarity it may be stated at this very juncture that the vacancy falling within the category of a reserved vacancy is treated as an unreserved vacancy as it happens to be a single vacancy arising in a year. If the appointment is being made for the first time to the said vacancy, then there is no question of any reservation. However, assuming that this is the second appointment, the principle of carry forward laid down under Rule 8(B) will have to be applied. It is provided under Rule 8(B) that in case where there is a single vacancy and if it is filled in as an unreserved vacancy even though initially it is a reserved vacancy, the reservation is carried forward to subsequent three years and it should be treated as a reserved vacancy against the carried forward vacancy from the initial recruitment year and the Scheduled Caste/Scheduled Tribe candidate, if available, should be appointed in that vacancy though it may happen to be the only vacancy in that recruitment year.

It is of utmost importance to appreciate the point that there is a difference between a single vacancy which is treated as a reserved vacancy against a carried forward vacancy from the initial recruitment year and a vacancy which is a reserved vacancy per se which is de-reserved and filled up by a general candidate in accordance with Rule 7. Under Rule 7 it is clearly stated that before any reserved vacancy is de-reserved and filled up by a general candidate, the prior approval of the Board of Directors for Group ''A'' and ''B'' posts and that of the Managing Director for Group ''C'' and ''D'' posts should be obtained. It is further clarified that the contingency for de-reserving a reserved vacancy would arise only when suitable candidates of the reserved community are not available or forthcoming. In the instant case it is not a question of de-reservation of a reserved vacancy consequent upon the fact that suitable candidates of the reserved community are not available or forthcoming. It is a case of single vacancy arising in a recruitment year which is to be treated as an unreserved vacancy under Rule 8(B). Therefore, the procedure prescribed for de-reservation of vacancies under Rule 7 will not be applicable to such a vacancy, which is treated as a reserved vacancy under the carried forward principle. In the subsequent recruitment year it is treated as a reserved vacancy against the carried forward reservation from the initial recruitment year and a Scheduled Caste/Scheduled Tribe candidate, if available, should be appointed in that vacancy. The words "a Scheduled Caste/Schedule Tribe candidate, if available" are important in the sense that even in the second and third year the single vacancy which is treated as a reserved vacancy under the carried forward principle can be filled up by a Scheduled Caste/Scheduled Tribe candidate if such a candidate is available. Even otherwise the vacancy can be filled up as an unreserved vacancy by any other person from the open category who may be found suitable for the job : When the vacancy is treated as a reserved vacancy under the carried forward rule under Rule 8-B, it is nowhere prescribed in the recruitment rules that the entire procedure for de-reservation provided under Rule 7 should be applied to such a vacancy because it does not happen to be a reserved vacancy which has been de-reserved as contemplated under Rule 7.

In the above said legal background, now it will have to be seen whether there has been any infringement of Rule 8(B) dealing specifically with the question of reservation and carried forward of a single vacancy arising in a year. The notification issued in this case is in the following terms :

"Bharat Heavy Electricals Ltd., (A Govt. of India Undertaking) Heavy Power Equipment Plant, Ramachandrapuram, Hyderabad - 32. needs LAW OFFICER Number of Posts : One Pay Scale : Rs. 1100-60-1940 (Total emoluments on minimum of the scale is Rs. 2000/- approx. and Rs. 3000/- on maximum of the scale).

Qualifications : A Bachelor Degree in Arts/Science/Commerce and Degree in Law from a recognised university and registered Membership in the Bar Council.

Experience :- Minimum of 5 years as practising Advocate, handling civil, criminal law, contracts/Commercial Law, Industrial/Labour Law, Conciliation proceedings, sales-tax, Central Excise; Candidates with experience in Legal Department of Central/State Government or Public Sector undertaking or large organisation or repute are preferred.

Should be able to handle independently all legal matters pertaining to the Company including drafting of legal documents, collaboration agreements, contracts and advise on domestic enquiries etc.

Knowledge of Telugu essential.

Note :- (i) Higher starting pay in the above scale can be considered in deserving cases :

(ii) Candidates possessing longer and right type of experience, if found suitable, will be considered for appointment in higher grade of Rs. 1450-1750-2240

Upper age limit and relaxation :- 35 years as on 1-8-1985. Relaxable by five years in case of SC/ST candidates. Experience is relaxable by one year in case of SC/ST candidates.

Relaxation in age for Ex-Servicemen will be as per the Government rules.

General :- The post carries other fringe benefits such as Gratuity, Provident Fund, Group Insurance, LTC., Leave Encashment, Plant Performance payment etc., as per Company Rules.

Candidates called for interview will be reimbursed single second class return train fare by shortest route from their starting station or mailing address whichever is nearer to the place of interview. Persons employed in Government Department/Public Sector Undertakings should apply through proper channel or produce a ''No objection certificate'' from their employer at the time of interview.

The prescribed job specifications are minimum and the mere possession of the same does not entitle candidates to be called for interview and the Company may restrict the number of candidates for interview on the basis of availability of candidates with qualifications and experience higher than the minimum prescribed.

How to apply : Please write to :

DY. MANAGER, PERSONNEL (G),

Bharat Heavy Electricals Ltd.,

Ramchandapuram,

HYDERABAD - 500 032.

(For an application form enclosing a self-addressed stamped envelope (25 Cm x 14 Cm) of the value of Rs. 1-50)

LAST DATE FOR RECEIPT OF FILLED IN APPLICATION

IS 6TH SEPTEMBER, 1985".

In the above said notification, after giving the details about the pay scales, qualification, experience etc., the following clause is found with regard to upper age limit and relaxation, viz.,

"Upper age limit and relaxation :- 35 years as on 1 August 1985. Relaxable by five years in case of SC/ST candidates. Experience is relaxable by one year in case of SC/ST candidates. Relaxation in age for Ex-Servicemen will be as per the Government Rules."

This clearly shows that applications were invited from Scheduled Caste/Scheduled Tribe candidates also with the necessary relaxation in the limit as well as in experience. Under Rule 8(B), which has been discussed above, it is stated that a single vacancy carried forward and treated as reserved should be filled up by a Scheduled Caste/Scheduled Tribe candidate if one is available. In terms of the above said notification applications have been invited from SC/ST candidates also. If a suitable SC/ST candidate is not available, then the single vacancy so carried forward can obviously be filled up by any other candidate as an unreserved vacancy. Therefore, it is difficult to see any force in the argument advanced by the learned counsel for the petitioner that the rule of reservation has been given a go-by in this case and that SC/ST candidates were not considered for the post of Law Officer. The discussion is on the assumption that the single vacancy is being carried forward to the second year under the principle laid down in Rule 8B of the Recruitment Rules. However, as stated earlier, in paragraph 3 of the additional counter affidavit filed on behalf of the respondent-Company it is categorically stated that the recruitment that has been done for the post of Law Officer in the year 1985 is the very first recruitment in the respondent-Company. The previous incumbent of the post of Law Officer was not directly recruited but he was promoted departmentally from supervisory cadre in the year 1972 initially as Asst. Law Officer and later on promoted as Law Officer in the year 1975. The said person retired in November 1985 and a consequential vacancy has arisen for which the advertisement in question had been issued. Since the post and vacancy is a single one, it should be treated as unreserved as per the rules and accordingly it has been done so. It it is taken to be the very first appointment to the single vacancy, then there is no question of the vacancy being carried forward and it has necessarily to be treated as an unreserved vacancy. But, I have taken care to look into the question from the point of view of the vacancy being carried in the second year of recruitment under the ''carried forward'' principle to eliminate any ambiguity about the contention that the principle of reservation has been fully applied in this case. In Chakradhar Paswan Vs. State of Bihar and Ors, the Supreme Court had occasion to discuss the question of only one post in the cadre to which the reservation rule does not apply. In the said case it is held that if there is only one post in the cadre there can be no reservation under Article 16(4). The whole concept of reservation for application of the 50 point roster is that there are more than one post. Hence the first vacancy of the Deputy Director (Homeopathic) in the case before the Supreme Court was treated as unreserved and thrown open to all. It has been further observed affirming the decision in Devadasan'' case T. Devadasan Vs. The Union of India (UOI) and Another, that no reservation could be made under Article 16(4) so as to create a monopoly. Otherwise, it would render the guarantee of equal opportunity contained in Arts. 16(1) & 16(2) wholly meaningless and illusory. The Supreme Court further observed that the principle so enunciated unmistakably lead to the conclusion that if there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage or for filling up a future vacancy in respect of availability of that post. A reservation which would come under Art. 16(4) pre-supposes the existence of atleast more than one post in that cadre. In the light of the above said decision of the Supreme Court, it becomes crystal clear that in case there is only one post to be filled up and at that particular point of time if the vacancy coincides with a reserved vacancy it is to be treated as an unreserved vacancy for which all candidates including those of the Scheduled Castes/Scheduled Tribes can compete. The matter does not end there and the Supreme Court has gone further to observe that such a vacancy will continue to be an unreserved vacancy either for recruitment at the initial stage or for filling up a future vacancy. However, in this case since the carried forward principle is applicable to the matter under Rule 8(B) of the Recruitment Rules, the vacancy has been treated as a reserved vacancy for which applications have been called for from Scheduled Caste/Scheduled Tribe candidates also granting them the necessary relaxations in matters of age limit and experience etc. Had there been a suitable candidate available from the Scheduled Caste/Scheduled Tribe, the vacancy would have been filled up by such a candidate. The notification in this case does not suffer from any infirmity on the basis of which it could be argued that the rule of reservation has not been applied in this particular matter. There is no specific rule which requires a notification in the case of a single vacancy carried forward under rule 8(B) of the Recruitment Rules to be notified in a particular manner. All that is required is that the notification must make it clear that Scheduled Caste/Scheduled Tribe candidates, who are eligible for appointment, can also apply and if such a candidate is available the vacancy is bound to be filled up by such a candidate. The petitioner in this case is no doubt fighting for a public cause even though he himself is not an applicant for the post of the Law Officer as advertised by the respondent Company and, therefore, taking a liberal view of the matter, I have held the writ petition to be maintainable and gone into the merits of the case to ensure that the rule of reservation has not been infringed in this matter.

Taking into consideration all the facts and circumstances of the case, the writ petition is dismissed as being devoid of any merit but there will be no order as to costs.