JUDGMENT
B.A. Khan, C.J. (A)
1. This appeal is directed against the Writ Court judgment dated 15th March, 2005, dismissing the appellant’s writ petition, SWP No. 856/2001.
2. The appellant had filed the writ petition seeking quashing of selection made by respondent No. 2 for the post of Servicing Operator in the Department of Mechanical Engineering dated 22nd March, 2001 and for a further direction to appoint him to the post in the grade of 4000-6000 in view of his longest experience and also the merit.
3. His case before the Writ Court was that first respondent had referred two posts of Service Operator for selection and that second respondent had issued advertisement notice No. 2 of 1999 on 17th May, 1999. This advertisement did not indicate that any of the two posts was reserved for RBA category. But still respondent No. 2 forwarded the selection list recommending only one candidate in open merit category and no candidate for the other post was recommended on the ground of non-availability of reserved category candidate. His case further was that respondents 1 and 2 had wrongly reduced the number of posts to one and had withheld the other post under the label of RBA category post, when that post was an open merit post for which he was entitled to be selected and appointed.
4. It seems that this writ petition was contested by the respondent-Selection Board on the plea that under SRO 126 of 1994 one of the posts was to be allotted to RBA category. It was on this basis that the Writ Court accepted the respondent-Board’s plea and proceeded on the premise that one post was to go to RBA category and because of non-availability of a candidate in that category the appellant had no right to be selected and appointed for non-availability of a post. The Writ Court held as under:
… In view of the clear mandate of SRO 126, no fault can be found with non-selection of second candidate against two advertised vacancies of Servicing Operator. Advertisement notice did not specify that both the vacancies are meant for open category. In this view of the matter, no relief can be granted to the petitioner. Petition is dismissed. Record is returned to Mr. Bakshi.
5. The appellant is in appeal against this judgment. It is submitted by his counsel that once the first respondent had not specifically indicated in its reference of the posts to the Board that one of the two posts was reserved for RBA category and once respondent-Board had issued advertisement notice dated 17th May, 1999 and had failed to indicate that any of the posts was reserved for RBA category, both posts were to be treated in open merit category, because advertisement notice was the only representation made to the eligible candidates pursuant whereto the appellant had sought selection against the post in the open merit category,
6. It is further contended by learned Counsel that one of the two posts could not have been placed under the reserved category of RBA at his back or at the back of the candidates who had applied for the post pursuant to the advertisement notice which did not indicate any reservation of any of the posts and in that way he was deprived of right of consideration for selection and appointment on the post.
7. When the matter was considered on the last date, the counsel for the Board submitted that it was competent to give effect to reservations under SRO 126 of 1994. In other words, he claimed that the Board could also treat a post under a reserved category. First respondent did not take a specific stand. Nor was any record produced before us to show that in the reference made to the Selection Board one of the posts was reserved for RBA category.
8. It was in this context that the Board counsel was asked to produce the roster, if any, maintained by it which could furnish the basis for allotting posts to one category or the other under SRO 126 of 1994.
9. Today, counsel for the Board fairly submitted that there was no roster maintained by the Board. Mr. Gupta has also not submitted any record to show that any of the two posts was reserved as a RBA category post.
10. That leaves us with no option but to treat both posts as open merit category posts, moreso when the advertisement notice issued by the Board did not indicate that any of the posts was reserved for RBA reserved.
11. Needless to point out that it was for the Administrative Department (first respondent) to indicate the reservation, if any, for the posts referred for selection to the Board. This respondent had admittedly failed to do so. Naturally, therefore, respondent-Board had proceeded on that premise and issued notification dated 17th May, 1999 without indicating any reservation of any of the two posts. This notification, it be hardly emphasised, is a representation to all eligible candidates and their response to the provisions of this notification vested in them a right of consideration which right cannot be taken away by a subsequent action at their back, as in this case the Board had taken on itself to treat one of the posts as RBA reserved post. It, in our view, has straight away deprived the appellant of his right of consideration for the post for which he was otherwise eligible and for which he had sought selection and would have earned appointment, depending on his merit. Viewed in this perspective, we are left with no doubt that the Writ Court had wrongly dismissed the appellant’s writ petition and did not correctly appreciate the position that none of the two respondents had reserved any of the two posts as RBA reserved category posts.
12. If the matter would have been viewed from the angle of right of consideration of the appellant, the result could have been the allowing of his writ petition and not its dismissal. The Writ Court order is, accordingly, set aside. The respondent-Board is directed to check up the merit position of appellant afresh and recommend his name in the select list against the withheld one post of Servicing Operator advertised vide notification No. 2 of 1999 dated 17th May, 1999 and, in case he fits the bill, then the first respondent is also directed to appoint him on the post giving retrospective effect to that appointment from the date the other candidate was appointed. This shall not, however, entitle him to any monetary benefits but the period so involved would be liable to be counted towards the length of his service and other service benefits.
The appeal is, accordingly, allowed.
