Mohd. Siddiq Ali Vs. High
Court of A.P. & Ors [2005] Insc 586 (24 October 2005)
Cji R.C. Lahoti,G.P.
Mathur & P.K. Balasubramanyan (with W.P.(C) No.504 Of 1999, C.A. No.3007 of
2001, W.P. (C) No.22 of 2001, W.P.(C) No.554 of 2001 and W.P.(C) No.555 of 2001)
G.P. Mathur, J.
1. The issue raised in the Civil Appeals and Writ Petitions which have been
filed under Article 32 of the Constitution is same and, therefore, they are
being disposed of by a common order.
2. The High Court of Andhra Pradesh issued a notification on 23.10.1996 for
making appointments to the posts of District Munsiff and the relevant part of
the notification which has a bearing on the controversy in dispute is
reproduced below :
"Notification For appointment to the post of District Munsiffs.
Applications are invited for 200 posts of District Munsiffs of which 27 by
limited Recruitment-backlog vacancies and 173 by General Recruitment in the
A.P. State Judicial Services.
VACANCY POSITION :
......................................................................................................
......................................................................................................
Note : 1. The General Recruitment vacancies are subject to the rule of Spl.
Representation under Rule 10 of the Spl. Rules for A.P. State Judicial Service
and also Rule 22(A)(2) of the A.P. State and Subordinate Service Rules.
2. The High Court reserves the right to increase or decrease the number of
vacancies after issue of this notification, if necessary." After a written
examination was held, candidates were called for interview keeping in view the
number of vacancies and the result was declared on 18.3.1997. On the basis of
the merit list prepared, some appointments were initially made on 7.4.1998.
Mohd. Siddiq Ali (appellant in C.A. No.3006 of 2001) filed Writ Petition
No.35876 of 1998 challenging the selection and appointment of some women
candidates and candidates belonging to Scheduled Castes and Scheduled Tribes.
The writ petition was dismissed in limine by a Division Bench of the High Court
(B. Subhashan Reddy and Y.V. Narayana, JJ) on 18.1.1999 and the order passed by
the Court reads as under :
"This writ petition challenges the women reservation in the matter of
selection of Munsiff Magistrates as also backlog for Scheduled Castes and
Scheduled Tribes candidates.
In so far as backlog of SC and ST candidates is concerned, it is a well
settled law that such a backlog is permissible under the Constitution Scheme.
In so far as women reservation is concerned, a Division Bench of this Court by
judgment dt. 31.8.1998 in W.P.
18307/98 and batch had maintained women reservation on the ground of the
same being not challenged and that challenge could not sustain in auxiliary
proceedings. The Division Bench, however, has set aside the action regarding
carry-forward in the matter of women candidates. Taking a clue from the
judgment of the said Division Bench that the action in providing reservation to
women was not challenged, this writ petition has been filed, but the same is
hit by laches for the reason that the notification was issued far back in 1996,
selection process went through and selections have been finalised and
appointments have been made.
In the circumstances, this writ petition is dismissed. No costs." Civil
Appeal No.3006 of 2001 has been filed challenging the aforesaid order of the
High Court.
3. Another writ petition being Writ Petition No.32021 of 1998 was filed by
S. Sreeramulu and D.D.V.S.N. Prasad challenging the same selection and
appointment of women candidates. The writ petition was dismissed by a Division
Bench (P. Venkatarama Reddi and Bilal Nazki, JJ) on 2.12.1998 and the order
passed by the Court reads as under :
"We are not inclined at this distance of time to entertain this Writ
Petition directed against the selection of candidates for the posts of District
Munsiffs which was finalised long back and pursuant to which appointment orders
were issued. That apart, on the basis of the information furnished by the panel
counsel for the High Court, the 1st petitioner has no chance of selection even
if his contention is accepted. The writ petition in so far as the 2nd
petitioner is concerned, is dismissed as he has separate cause of action and he
should have filed a separate writ petition. In fact, it is noticed that the
affidavit is filed by the 1st petitioner only. The writ petition is, therefore,
dismissed at the admission stage." Civil Appeal No.3007 of 2001 has been
filed challenging the aforesaid order of the High Court.
4. Learned counsel for the appellant has submitted that Rule 22-A(2) of the
Andhra Pradesh State and Subordinate Service Rules was wrongly applied while
making the selection to the post of District Munsiff. He has further contended
that Rule 22-A(2) of the aforesaid Rules did not provide for a reservation to
the extent of 30% in favour of women but merely laid down a rule of preference
and, therefore, the selection made of women candidates after applying a policy
of reservation in their favour is wholly illegal. The appellant in civil appeal
no.3006 of 2001 has filed a copy of A.P. State and Subordinate Rules in the
additional documents filed in I.A. No.7 of 2005 and Rule 22-A of the Rules is
reproduced below :
"22-A. Notwithstanding anything contained in these Rules or Special or
Ad hoc Rules (1) In the matter of direct recruitment to posts for which women
are better suited than men, preference shall be given to women :
Provided that such absolute preference to women shall not result in total
exclusion of men, in any category of posts.
(2) In the matter of direct recruitment to posts for which women and men are
equally suited, other things being equal, preference shall be given to women
and they shall be selected to an extent of atleast 30% of the posts in each
category of O.C., B.C., S.C., and S.T. quota.
(3) In the matter of direct recruitment to posts which are reserved
exclusively for being filled by women they shall be filled by women only."
5. Learned counsel has submitted that the aforesaid Rule came up for Anr.
(1995) 4 SCC 520 and it was held therein that the preference contemplated by
the Rule will come into operation only when the candidates obtain the same
number of marks as the Rule uses the expression "other things being
equal".
This position was made clear in the judgment and the relevant part of
headnote (B) of the report on which great emphasis was laid during the course
of arguments is being reproduced below :
"Rule 22-A(2) of the A.P. State and Subordinate Service Rules does not
provide reservation for women in the normal sense of the term. It is a rule for
a very limited affirmative action. The preference contemplated under Rule
22-A(2) will come into operation at the initial stage when in the selection
test for the post in question, candidates obtain the same number of marks or
are found to be equally meritorious. Rule 22-A(2) prescribes a minimum
preference of 30% for women, clearly contemplating that for the remaining posts
also, if women candidates are available and can be selected on the basis of
other criteria of selection among equals, which are applied to the remaining
candidates, they can also be selected. The phrase "other things being
equal" does not refer to these other norms for choosing from out of
equally meritorious persons. The 30% rule is also not inflexible. In a
situation where sufficient number of women are not available, preference that
may be given to them could be less than 30%. The rule is thus within the ambit
of Article 15(3) and is not violative of Articles 16(2) and 16(4) which have to
be read harmoniously with Articles 15(1) and 15(3)."
6. We have considered the submission made by learned counsel for the
appellant and have examined the record. It is rather unfortunate that what is
placed on record is the unamended A.P. State and Subordinate Rules and
arguments have been advanced on its basis. Rule 22-A(2) of the aforesaid Rules
has undergone several amendments and this position was noticed by a Division
Bench of A.P. High Court (P. Venkatarama Reddi and R.M. Bapat, JJ) in Writ
Petition No.18307 of 1998 filed by Modh. Iqbal and Ors. wherein the same
selection of District Munsiff was challenged. The judgment in this case was
delivered on 31.8.1998 i.e. prior to the filing of the two writ petitions in
the High Court and the same is reported in 1998 (5) ALD 590. The amendment in
the Rules were considered in para 5 of the judgment which reads as under :
"5. Sub-rule (2) of Rule 22-A of A.P. State and Subordinate Service
Rules (hereinafter referred to as APSS Rules) as amended by G.O.Ms.No.237 dated
28.5.1996 provided for the first time reservation for women to the extent of
33-1/3% of posts in each category i.e., OCs, BCs, SCs, STs, Physically
Handicapped and Ex- servicemen with effect from 8.3.1996. This was in modification
of the earlier rule of preference in favour of women. It is laid down by means
of a proviso that if sufficient number of women candidates are not available,
the vacancies shall be filled by men.
The Rule in the same form was retained when the APSS Rules were further
amended by G.O. No.436, dated 15.10.1996. A few months thereafter, Rule 22-A(2)
had undergone a further change by G.O.
No.65, dated 15.2.1997. The proviso to Rule 22-A(2) was deleted.
Simultaneously, there was a corresponding amendment to Rule 22 placing the
women candidates on par with SCs, STs, BCs and Physically handicapped
candidates for the purposes of application of the procedure for limited
requirement and carry forward of vacancies. Note (2) was added to Rule 22 by
which it was provided that the "principle of carry forward of vacancies in
respect of women shall be with effect from 28.10.1996". Note (3) provided
for application of roster points for women candidates with effect from
1.8.1996." The Bench struck down the action of the respondents in carrying
forward the unfilled vacancies reserved for women candidates, while not
disturbing the selections and appointments of women candidates already made on
the ground that Rule 22-A(2) which the High Court purported to adopt in the recruitment
notification did not contain any principle of carrying forward of vacancies
relating to women candidates. A direction was accordingly issued that those
vacancies should be filled in by men candidates in the order of merit and
subject to the observance of roster point and the rules of reservation
applicable to Scheduled Castes, Scheduled Tribes and backward classes. In view
of the amendment of the Rules, the contention raised by learned counsel for the
appellant has no merit at all and has to be rejected.
7. In Civil Appeal No.3006 of 2001, the writ petition was dismissed by the
High Court on the ground that though the notification had been issued on
23.10.1996, but the writ petition wherein reservation in favour of women was
challenged was filed in November, 1998 and, therefore, the writ petition was
highly belated. Learned counsel for the appellant has submitted that the writ
petition should not have been dismissed on the ground of laches. In support of
his submission learned counsel has placed reliance on R.S. Deodhar vs. State of
Maharashtra AIR 1974 SC 259, wherein it has been held that the rule which says
that a Court may not inquire into belated or stale claims is not a rule of law
but a rule of practice based on sound and proper exercise of discretion and
there is no inviolable rule that whenever there is delay, the Court must
necessarily refuse to entertain the petition. The question is one of discretion
to be followed on the facts of each case. On the strength of the aforesaid
authority it is submitted that the High Court has erred in dismissing the writ
petition on the ground of laches.
We are unable to accept the contention raised. In the authority cited, the
dispute related to inter se seniority of Mamlatdars/Tehsildars in the newly
constituted State of Bombay by virtue of the provisions of the States
Reorganization Act, 1956. The inter se seniority of persons holding the same
rank has a great bearing at the stage of promotion to a higher post and in such
a situation it was held that in the facts and circumstances of the case, the
writ petition could not be dismissed on the ground of laches. In the present
case the persons selected had already joined as District Munsiffs long back and
the challenge has been raised to their selection after the decision had been
rendered by the A.P. High Court in Writ Petition No.18307 of 1998 (Mohd. Iqbal
Ahmad & Ors. vs. High Court of A.P.) on 31.8.1998. We, therefore, do not
find any infirmity in the order passed by the High Court.
8. In Civil Appeal No.3007 of 2001, the High Court has recorded a finding
that the appellant S. Sreeramulu had no chance of selection even if the
contention raised by him was accepted. Nothing has been brought on record to
show that the reasons given by the High Court in dismissing his writ petition
are incorrect. We, therefore, do not find any merit in the appeal.
9. Regarding the writ petitions which have been directly filed in this Court
under Article 32 of the Constitution, it may be noted that Writ Petition (C)
No.504 of 1999 was filed on 6.11.1999, Writ Petition (C) No.22 of 2001 was
filed on 8.11.2000, Writ Petition (C) No.554 of 2001 and Writ Petition (C)
No.555 of 2001 were filed on 19.10.2001. We are of the opinion that these writ
petitions, wherein challenge has been made to the notification issued by the
High Court on 23.10.1996, are highly belated and are liable to be dismissed on
the ground of laches.
10. For the reasons discussed above, all the Civil Appeals and Writ
Petitions are dismissed.
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