Judgment:
ORDER
Lakshmanan, J.
1. The petitioner abovenamed has filed the writ petition for the following relief: To issue a writ of certiorarified mandamus, calling for the records relating to the proceedings of the Staff Selection Committee/Executive Committee consisting of respondents 1 to 3, Food Craft Institute, Tiruchirapalli, on 30.7.1990 in so far as the selection of the 4th respondent to the post of Assistant Lecturer-cum-Assistant Instructor, Restaurant and Counter Service is concerned and quash the same and direct the Staff Selection Committee and Executive Committee, Food Craft Institute, Thuvakkudi, Tiruchirapalli, to appoint the petitioner to the post of Assistant Lecturer-cum-Assistant Instructor, Restaurant and Counter Service in Food Craft Institute, Thuvakkudi, Tiruchirapalli.
2. The petitioner, after the completion of his school studies, joined the Certificate Course of Bakery and Confectionery in the year 1983. The State Board of Technical Education and Training, Department of Technical Education, issued the certificate of Bakery and Confectionery, after the completion of Craftsmanship Course of Institution in Bakery and Confectionery. Thereafter, the petitioner joined the three year course in Diploma in Hotel Management and Catering Technology in Bangalore. The course was for three years. After the completion of three years, examination held in May, 1986, and the petitioner was issued Diploma in Hotel Management and Catering Technology. After the completion of diploma course, the petitioner joined as Manager in the Royala Hindu Restaurant from 1986 to February, 1989. From 21.12.1989, he has been working as Assistant Food and Beverages Manager in Rajali Hotel, Tiruchirapalli.
3. After obtaining the diploma, the petitioner registered himself in the District Employment Office, Tiruchirapalli, on 27.11.1987 and his registration number is 15983 of 1987. For the post of Assistant Lecturer-cum-Assistant Instructor, Restaurant and Counter Service, the 3rd respondent by his letter dated 17.5.1990, called for a list of candidates from the District Employment Office and the Employment Exchange by its letter dated 28.5.1990 sent the petitioner's name alone to the 3rd respondent. The petitioner was not called for interview for the said post for the reasons best known to the 3rd respondent. To accommodate the 4th respondent, the 3rd respondent appeared to have called for some more candidates from the District Employment Exchange along with the 4th respondent. The District Employment Exchange obliged the 3rd respondent by sending another list of candidates on 16.7.1990. It is pertinent to mention that originally the 3rd respondent called for the candidates by his letter dated 17.5.1990. On 18.5.1990, the 4th respondent registered himself with the District Employment Exchange and his registration number is 4857 of 1990, and the sequence of events in the matter of appointment of the 4th respondent clearly show that the appointment is a predetermined one and that there was no fair selection to the said post. According to the petitioner, respondents 1 to 3 are public servants and a duty is cast upon them to conduct the fair selection in the matter of appointment. Since the appointment to the post and the interview was not done in a fair manner, the petitioner has filed the above writ petition challenging the selection of the 4th respondent to the post of Assistant Lecturer-cum-Assistant Instructor on the grounds mentioned in the affidavit.
4. According to the petitioner, he is having the necessary qualification and prescribed by the norms of the selection and as a candidate he has fulfilled the qualification more than the 4th respondent. The 4th respondent on the date of selection was already in the Central Government service as Member Administrative Superintendent in the Centre for Development Telematics, Telecom Technology Centre, Government of India, Bangalore. As requested in the interview letter issued on 24.7.1990 by the 3rd respondent, the 4th respondent has not produced the no objection certificate from the authorities. As required by G.O.Ms. No. 40, Employment Services Department, dated 14.3.1984, there was not even the minimum ten days for the candidates who report for the interview as disclosed in the letter dated 28.5.1990 sent by the District Employment Exchange. Thus, according to the petitioner the appointment of the 4th respondent is pre-determined one and the appointment by respondents 1 to 3 in a hurried manner would confirm that the selection was not done in a fair mariner.
5. Respondents 1 and 2 have filed a counter affidavit. According to them, the Executive Committee is the competent authority for recruitment to the post of Assistant Lecturer-cum-Assistant Instructor, Restaurant and Counter Service, and the Principal of the Institute, who is the Secretary to the Executive Committee, issues the appointment order for that post. The Principal and Secretary, Food Craft Institute, sent a requisition to the District Employment Exchange, Trichy, on 17.5.1990, to sponsor candidates for the post of Assistant Lecturer-cum-Assistant Instructor, Restaurant and Counter Service and Assistant Lecturer-cum-Assistant Instructor, for House Keeping which were vacant on that dates. The qualifications prescribed for both the posts are as follows:
Essential : - Three year Diploma in Hotel Management and Catering Technology - Equivalent from Government recognised Institute.
Desirable : - (1) Post Diploma in Hotel Management from recognised Institute. (2) Acraf Certificate in the relevant field, i.e., in Restaurant and Counter Service.
Experience : - At least one year Teaching/Practical Experience in the relevant field in at educational Institute/Industry.
6. Since it was difficult to get candidates with the qualification of Diploma in Hotel Management and Catering Technology, the District Employment Exchange, Tiruchirapalli, was required to circulate among other Exchange about these vacancies in order to get enough candidates for this interview and to select the right candidates for this teaching post. It was also requested to sponsor candidates for open competition comprising of all the communities. The petitioner's name was sponsored by the District Employment Exchange, Tiruchirapalli, in his letter dated 28.5.1990 for the post of Assistant Lecturer-cum-Assistant Instructor, Restaurant and Counter Service. No interview was held as only one candidate was sponsored. In the Institute's letter dated 17.5.1990 addressed to the District Employment Exchange, Tiruchirapalli, it was indicated that the requisition made by the Institute for sponsoring suitable candidates may be circulated to other Employment Exchanges also in case local candidates are not available. The Assistant Director, District Employment Exchange, Tiruchirapalli, by his letter dated 28.5.1990 sponsored one candidate and again or 16.7.1990 sponsored three candidates. Later, the District Employment Officer, Technical Professional Employment Exchange, Madras by his letter dated 18.7.1990, has sponsored five candidates and again on 23.7.1990 has sponsored 14 more candidates for filling up the vacancy of Assistant Lecturer-cum-Assistant Instructor, Restaurant and Counter Service.
7. The interview was fixed on 30.7.1990 at the Food Crafts Institute, Tiruchirapalli. The Call letters to 19 candidates, who were qualified were dispatched by speed post on 23.7.1990. The petitioner was called for interview. He attended the interview on 30.7.1990 along with eight other candidates. The Institute is not concerned regarding the dates on which the candidates would have registered their names in the Employment Exchange. In the call letter, it has also been clearly stated that the fact that she/he been called for the interview does not guarantee selection of the post It is further stated that the selection of the 4th respondent was done in a fair manner and due opportunity was provided to all candidates who attended the interview to expose their technical knowledge and ability. All the nine candidates who attended the interview possessed the basic qualifications. The petitioner and the 4th respondent also possessed the basic qualification.
8. Along with the vacancy of Assistant Lecturer-cum-Assistant Instructor, Restaurant and Counter Service, one more vacancy of Assistant Lecturer-cum-Assistant Instructor, House Keeping was also to be filled up. Both the vacancies carry the same basic qualification with minimum one year experience in the relevant field with same scale of pay. Hence, the list of candidates were called for the Open Competition for the above two posts with preference for lady candidates for House Keeping. The Employment Exchange has recommended 23 candidates which included 13 Backward Classes, 7 Open Competitions and 3 Scheduled Castes for Restaurant and Counter Service and 3 candidates which included 2 Backward Classes and 1 Scheduled Caste for House Keeping. The Executive Committee, which is the competent authority to make appointment to the above posts, decided to fill up the vacancy for the post of Assistant Lecturer-cum-Assistant Instructor, Restaurant and Counter Service, from Backward Class and Assistant Lecturer-cum-Assistant Instructor for House Keeping from Open Competition, preferably lady candidates according to communal rotation.
9. Both the petitioner and the 4th respondent possess the essential technical qualification and experience and based on their performance at the interview, a panel of three candidates as mentioned below was approved by the competent authority;
1. Thiru P. Prakash Kumar (B.C.) - Selected.
2. Thiru P.R. Chockalingam (W.L.) No. 1
3. Thiru K. Ravi (B.C.) W.L. No. 2.
The Employment Exchange, Trichy, has sponsored four candidates from Trichy and 19 candidates from Madras. Call letters were sent by speed post on 23.7.1990. The petitioner himself had received it on 24.7.1990 and he had intimated that he was willing to appear for the interview to be conducted on 30.7.1990 - vide his letter dated 24.7.1990. He attended the interview along with others on 30.7.1990. Hence, the question of allowing ten days time need not be considered in view of the urgency and since the Institution had reopened on 23.7.1990. Thus, it is submitted by respondents 1 and 2 that the selection of the 4th respondent was made on the basis of the performance in the interview and therefore, his appointment was made in a fair manner and that the same cannot be challenged in the writ petition.
10. The counter affidavit filed by the 3rd respondent is also on the same lines as that of respondents 1 and 2.
11. The 4th respondent has filed a counter affidavit dated 10.7.1992 and stated that he has the desirable qualification since he possesses a Crafts Certificate. He further states that the selection was based on community, that he belonged to Backward Community and that there is no bar for a B.C. community candidate being selected even against Open Competition. He also states that the selection was made by a competent committee of three officers. The selection was not tainted with any favouritism of mala fide.. Therefore, he submits that the writ petition has no merits and hence the same is liable to be dismissed.
12. I have heard Mr. R. Krishnamurthi, learned Senior Advocate for the petitioner, Mr. P. Shanmugham, learned Additional Government Pleader for respondents 1 and 2, Mr. K. Sridhar, learned Counsel for the 3rd respondent and Mr. R. Ganesan, learned Counsel for the 4th respondent.
13. As could be seen from the counter affidavit filed on behalf of respondents 1 and 2, the petitioner and the 4th respondent possess the essential technical qualification and experience. It is also admitted that the Executive Committee is the competent authority to make the appointment to the post of Assistant Lecturer-cum-Assistant Instructor, and the said committee decided to fill up the vacancy for the post of Assistant Lecturer-cum-Assistant Instructor, for Restaurant and Counter Service from Backward Classes and Assistant Lecturer-cum-Assistant Instructor for House Keeping from 'O.C.', preferably lady candidates according to communal rotation. It cannot be gain-said that when there is only one post, there can be no reservation at all. In this connection, two judgments can be usefully referred to, one by the Apex Court and the other by the Karnataka High Court.
14. The decision reported in Dr. Chakradhar Paswan v. State of Bihar : (1988)IILLJ66SC , can be usefully referred to in this context, The Supreme Court has observed as follows:
It is quite clear after the decision in Devadasan's case, 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 Articles 16(1) and 16(2) wholly meaningless and illusory. These principles unmistakably lead us 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 that post. A reservation which would come under Article l6(4) pre-supposes the availability of atleast more than one post in that cadre.
15. The next decision to be considered is the judgment of a Full Bench of Karnataka High Court reported in Dr. Rajkumar v. Gulbarga University : AIR1990Kant320 , wherein the Full Bench has observed as follows:
The next question for consideration is, as to whether in respect of categories of Professors, Lecturers or Readers, as the case may be, if there is only one post, could there be reservation at all. As far as this aspect is concerned, the matter is no longer res integra. The question is concluded by the decision of the Supreme Court in the case of Dr. Chakradhar Paswan v. State of Bihar : (1988)IILLJ66SC . The relevant paragraph 16 of the judgment reads;
16. It is quite clear after the decision in Devadasan's case, 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 Articles l6(1) and 16(2) wholly meaningless and illusory. These principles unmistakably lead us 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 that post. As reservation which would come under Article 16(4), pre-supposes the availability of at least more than one post in that cadre.'
In the above paragraph, the Supreme Court has ruled that in respect of cadres where there is only one post, it does not admit of any reservation at all.
16. The above decisions, in my view, are very clear that when there is only one post, the same has to be filled up without applying the rule of reservation.
17. Admittedly, the Executive Committee, after interview had decided to fill up the post from Backward Community candidate. This in my view, is not at all permissible in law. The competent authority has decided to fill up the post only from Open Competition. On this sole ground, the impugned order is liable to be set aside.
18. In view of my finding on the above point, it is not necessary to go into the other points raised by the learned Counsel appearing for the petitioner and the respondents.
19. For the foregoing reasons, I am of the view that the writ petitioner should succeed. Accordingly, the impugned proceedings dated 30.7.1990 selecting the 4th respondent for the post of Assistant Lecturer-cum-Assistant Instructor, Restaurant and Counter Service in Food Craft Institute, Thuvakkudi, Tiruchirapalli is set aside. It is not in dispute that the 4th respondent registered himself with the Employment Exchangeonly on 18.5.1990 after respondents 1 and 2 requested the Employment Exchange to sponsor names for appointment as Assistant Lecturer-cum-Assistant Instructor. The 4th respondent was also in the employment of the Central Government at that time. It is also not in dispute that the writ petitioner's name has been selected and he is No. 1 in the waiting list. Respondents 1 and 2 do admit that the writ petitioner possesses all the essential technical qualification and experience as required. I, therefore, direct the Executive Committee/Staff Selection Committee, Food Craft Institute, Tiruchirapalli, to consider the name of the writ petitioner for appointment of Assistant Lecturer-cum-Assistant Instructor, Restaurant and Counter Service, within one month from the date of receipt of a copy of this order, and pass orders accordingly taking into account all the observations made in this judgment. The writ petition is allowed. No costs.