2014 (4) TMI 846 - HC - Service Tax

Appointment of Members of CESTAT - Appointment on reserved category - By notification/advertisement dated 17.8.2009 applications came to be invited for appointment to the post of Member (Technical) CESTAT - Held that - notification/advertisement dated 17.8.2009 by which the applications were invited for appointment to the posts of Member (Tech.) CESTAT did not indicate that any of the posts had been reserved for the members of Scheduled Caste and Scheduled Tribes. The circumstance that format of application at clause 5 required the applicant to state whether he belongs to 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. 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. 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.

Summary

Issues Involved:
1. Application of reservation rules for appointments to the post of Member (Technical) in CESTAT.
2. Validity of the selection process and notification/advertisement.
3. Participation in the selection process without protest.
4. Distinguishing previous Supreme Court rulings.
5. Amendment of Rule 21 of the CESTAT Rules.

Detailed Analysis:

1. Application of Reservation Rules:
The petitioner claimed that the recruitment for the post of Member (Technical) in CESTAT should follow the reservation rules as per the Customs, Excise and Service Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1987. Rule 21 of these rules states that reservations for Scheduled Castes, Scheduled Tribes, and other categories must be provided as per the Central Government's orders. The petitioner argued that the percentage of reservations for Scheduled Castes should be 16.67% for direct recruitment on an all-India basis. Since there were 11 posts and only one was filled by a Scheduled Caste member, at least one more post should have been reserved.

2. Validity of the Selection Process and Notification/Advertisement:
The notification/advertisement dated 17.8.2009 did not indicate any reservation for Scheduled Castes or Scheduled Tribes. The petitioner applied and participated in the selection process without challenging this notification. The CAT noted that the selection process was conducted by a committee chaired by a Supreme Court Judge and found no reservation policy applicable to CESTAT appointments. The CAT distinguished the cases cited by the petitioner, stating they were not applicable.

3. Participation in the Selection Process Without Protest:
The petitioner participated in the selection process without any protest and only challenged it after being unsuccessful. The CAT and the High Court referred to several Supreme Court judgments, including Madan Lal vs. State of J & K, which established that candidates who participate in a selection process without protest cannot later challenge it if they are unsuccessful. The petitioner's participation implied acceptance of the terms of the selection process.

4. Distinguishing Previous Supreme Court Rulings:
The petitioner relied on Supreme Court rulings in Post Graduate Institute of Medical Education & Research, Chandigarh, and Ajay Kumar Singh, which mandated reservations. However, these rulings were overruled by a Constitution Bench in Dr. Preeti Srivastava vs. State of M.P., which emphasized maintaining standards and rejected the notion that reservations should apply at the entry level if the final examination standards are high.

5. Amendment of Rule 21 of the CESTAT Rules:
The petitioner argued that the amendment to Rule 21, which exempted the posts of Judicial and Technical Members from reservation orders, implied that reservations were applicable before the amendment. However, the High Court found that no specific orders from the Central Government mandated reservations for these posts. The amendment was seen as a clarification rather than a change in policy. The petitioner's failure to challenge the notification/advertisement and his participation in the selection process without protest rendered his arguments moot.

Conclusion:
The High Court upheld the CAT's decision, finding no jurisdictional error or perversity. It concluded that the petitioner, having participated in the selection process without protest, could not challenge it after being unsuccessful. The court discharged the rule and did not award any costs.