TMI Blog2014 (4) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... er have insisted that one of the posts be treated as 'reserved post' and the candidature of the Petitioner be considered against the same. The Petitioner, in the present case did not choose to challenge the notification/advertisement dated 17.8.2009 on the ground that no vacancy was declared as 'reserved vacancy'. Instead the Petitioner applied for appointment in pursuance of the notification/advertisement dated 17.8.2009 without any demur. Besides, it is clear that the Petitioner 'took his chance' with the selection process and merely because the Petitioner was not successful, has now turned around and questioned the entire selection process. In such circumstances, relief was rightly denied to the Petitioner - Decided against Petitioner. - Writ Petition No. 5548 of 2012 - - - Dated:- 21-4-2014 - Anoop V. Mohta And M. S. Sonak,JJ. For the Petitioner : Mr. G. K. Masand i/b Mr. A.A. Manwani For the Respondent : Mr. Ashok Shetty a/w. Mr. A.M. Sethna, Mr. A. R. Varma i/b Mr. H.P Chaturvedi JUDGMENT (Per M. S. Sonak,J.) 1 Rule. Rule is made returnable forthwith with the consent of the parties. 2 This petition is directed against the judgment and order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nothing in these rules shall affect reservations, relaxation of age limit and other concessions required to be provided for the Scheduled Castes, the Scheduled Tribes, ex-servicemen and other special categories of persons, in accordance with the orders issued by the Central Government from time to time in this regard. 6 It is further the case of the Petitioner that the percentage of reservations prescribed for Scheduled Caste is 15%. However, in respect of posts to be filled-in by Direct Recruitment on all India basis, otherwise than by way of open competition, reservation percentage prescribed for the Scheduled Caste is 16.67% of the total number of posts. It is the case of the Petitioner that in the cadre of Members (Tech.), there are 11 posts out of which six posts had already been filled-in at the time of issuance of notification/advertisement dated 17.8.2009. Out of the balance posts, only one was filled-in by a member of the Scheduled Caste. Therefore, applying the reservation percentage of 16.67%, at least one more post ought to be reserved for the member of Scheduled Caste. It is the case of the Petitioner that upon treating one of the vacancies as reserved for Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings of the Supreme Court in the case of Post Graduate Institute of Medical Education Research, Chandigarh (supra) and Ajay Kumar Singh (supra) mandate providing reservation to the Members of the Scheduled Caste and Scheduled Tribes in matters of filling-up of vacancies by direct recruitment or by promotion. There was no basis for the CAT to distinguish these binding precedents and to hold that the reservation policy did not apply for appointments to the CESTAT; (c) The Respondents were not entitled to place reliance upon U.O. Letter No.36016/1/88 Estt. (SCT) dated 26.10.1988 to contend that the posts of Judicial and Technical Members, CESTAT stand excluded from reservation policy or operation of reservation order. The U.O. Letter was not even in the nature of an executive instructions. In any case, even an executive instruction cannot operate to amend the CESTAT Rules, which guarantee reservations; (d) The circumstance that after passing of the impugned judgment and order, Rule 21 of the CESTAT Rules has been amended to specifically exempt the posts of Judicial Member and Technical Member from the operation of the reservation orders, implies that prior to such amendment wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheduled Caste/ Scheduled Tribes category, cannot lead to the inference that the notification/advertisement indicated that any of the posts of Member (Tech.) CESTAT were reserved posts. Considering that the posts with which we are concerned are that of Members, CESTAT, there is no scope to assume that the Petitioner was mislead into believing that any posts had been reserved for the Members of Scheduled Caste/ Scheduled Tribes. In absence of any clear indication in the notification/advertisement, the Petitioner could never have insisted that one of the posts be treated as 'reserved post' and the candidature of the Petitioner be considered against the same. The Petitioner, in the present case did not choose to challenge the notification/advertisement dated 17.8.2009 on the ground that no vacancy was declared as 'reserved vacancy'. Instead the Petitioner applied for appointment in pursuance of the notification/advertisement dated 17.8.2009 without any demur. Further, the Petitioner attended and participated in the interview held on 18.9.2010 which was an essential component of the selection process, again, without any protest or demur. To uphold the contention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post of Professor of Marine Science was illegal. It was contended that under Statute 8, it is the Executive Council which has to prescribe the qualifications after considering the recommendations of the Academic Council. According to Respondent 5, the qualifications which were prescribed in the 1995 Advertisement and handout issued to the applicants in connection therewith had not been prescribed by the Executive Council nor recommended by the Academic Council. Whether this is so or not, this is not a grievance which could have been raised by Respondent 5. He knew that there was a change in the eligibility criteria for the post yet he applied for the post and appeared at the interview without protest. He cannot be allowed to now contend that the eligibility criteria were wrongly framed. ..(emphasis supplied) 14 The Supreme Court in the case of Marripati Nagraja ors. vs. Government of Andhra Pradesh ors. - (2007) 11 SCC 522, at para 19 has observed thus:- 19. ............................... The appellants had appeared at the examination without any demur. They did not question the validity of the said question of fixing of the said date before the appropriate author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection, he cannot now turned round and challenge the selection process on the ground that it is totally vitiated, illegal, arbitrary etc. The applicant has not challenged the Notification also. 18 Accordingly, we endorse the aforesaid observation of the CAT and based thereon we are also of the opinion that the Petitioner was not entitled to any relief. 19 The contention of the Petitioner on the basis of the decisions in the case of Post Graduate Institute of Medical Education Research, Chandigarh (supra) and Ajay Kumar Singh (supra) deserves rejection on the ground that a Constitution Bench of the Supreme Court of India in the case of Dr. Preeti Srivastava anr. vs. State of M.P. ors. (1999) 7 SCC 120, has specifically overruled the said two decisions. At para 48, Sujata V.Manohar J. speaking for the majority has observed thus:- 48. In this connection, our attention is also drawn to the emphasis placed in some of the judgments on the fact that since all the candidates finally appear and pass in the same examination, standards are maintained. Therefore, rules for admission do not have any bearing on standards. In Ajay Kumar Singh v. State of Bihar (supra) this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner was in no position to produce any orders issued by the Central Government specifically making applicable the reservation policy for recruitment to the posts of Member (Tech.) CESTAT. In any case, no useful purpose will be served by delving any deeper upon this issue in the light of our opinion, that the Petitioner, having failed to question the advertisement/notification dated 17.8.2009 and further having taken his chance in the selection process, was not entitled to turn round and raise such challenges. 22 For the same reasons, no useful purpose will be served in addressing the contentions raised in sub-paragraphs (c) (d) of paragraph 8 of this judgment and order. Rule 21 of CESTAT Rules merely provides that nothing in the CESTAT Rules shall affect reservations to be provided for Scheduled Caste in accordance with orders issued by the Central Government from time to time in this regard. No specific orders were produced on record with regard to reservations in appointments to the posts of Members, CESTAT. In a given case , it is possible that the Rules are amended for the purposes of removal of ambiguity or out of abundance of caution. In the present case, notif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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