Compilation Vol 3 Corrected (1-943).pmd - Goa Public Service ...

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Karnataka PSC
Tribunal, but it was not done. This does not however prevent them from raising their
objections to the creamy layer application while responding to the provisional select list.
During hearing, mention was made that the private Respondents were ‘estopped’ from
raising the objection relating to erroneous instructions contained in the recruitment
notifications, since they had, up till the time of publication of the provisional select list,
gone along with the recruitment, filed their applications, and participated in the competitive
examination, etc., without protest. We are clear that this argument has no merit and take
support from the observations of the Apex Court in A.C.JOSE v. SIVAN PILLAI AND
OTHERS (AIR 1984 SC 921). The issue there was the use of voting machines in elections,
and the appellant had not objected to them when he had opportunity earlier. The court
observed:
‘Lastly, it was argued by the Counsel for the Respondents that the appellant
would be estopped from challenging the mechanical process because he did
not oppose the introduction of this process although he was present in the
meeting personally or through his agent. This argument is wholly untenable
because when we are considering a constitutional or statutory provision there
can be no estoppel against a statute and whether or not the appellant agreed
or participated in the meeting which was held before introduction of the
voting machines, if such a process is not permissible or authorized by law he
cannot be estopped from challenging the same.’
In this instance too, the statutory provisions need to be upheld and the argument of
estoppel cannot be allowed to come in its way. The key issue is that of fulfillment of the
reservation rules. It is indisputable that as the selecting authority, KPSC, has to conform
to the provisions of the Karnataka Scheduled Castes, Scheduled Tribes and Other
Backward Classes (Reservation of Appointments, etc.) Act, 1990 and the rules thereunder,
namely the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes
(Reservation of Appointment etc.) Rules, 1992 in respect of extent and manner of
reservations for the members of the Scheduled Castes, Scheduled Tribes and Other
Backward Classes, and to the provisions of the Karnataka Reservation of Appointments
or Posts (in the Civil Services of the State) for Rural Candidates Act, 2000, in respect of
the horizontal reservation in favour of rural candidates in vacancies earmarked for direct
recruitment in each of the categories of General Merit, the Scheduled Castes and Scheduled
Tribes and in each of the categories of the Other Backward Classes. In the present
recruitment, the Commission was required to follow the Reservation Order dated
30.3.2002. To recall the important provisions, para 3 of the Reservation Order states
that ‘Candidates belonging to Category II(A), II(B), III(A) and III(B) shall be entitled to
reservation in the manner specified in the new comprehensive Creamy Layer Policy’.
The Annexure-II to the said Government Order is called “NEW COMPREHENSIVE
CREAMY LAYER” and it opens with the statement : “Under Article 15(4) and 16(4) of
the Constitution of India, the following persons shall not be eligible for reservation of
seats of post categorized under IIA, IIB, IIIA and IIIB but immediately thereafter the
Note 1 states ‘This rule will not apply to direct recruitment to posts, which insist on a
prescribed period of service in a lower post or experience in a post, profession or
occupation as a qualification of eligibility’. It is therefore crystal clear that the recruitment
in question could only have been made without applying the creamy layer concept since
it was a case where a qualifying period of service in a lower post had been prescribed.”