Marripati
Nagaraja & Ors Vs. The Government of Andhra Pradesh & Ors [2007] Insc
1065 (12 October 2007)
S.B.
Sinha & Harjit Singh Bedi
(Arising
out of SLP (C) No.7222 of 2004) [With CA Nos.4869-4873/07 arising out of SLP
(C) Nos.15032-15036 of 2004] S.B. Sinha, J.
1.
Leave granted.
2.
Andhra Pradesh Public Service Commission, on the advice of the State of Andhra Pradesh, issued a notification on or about
1.10.1992 inviting applications for recruitment to various posts including 34
posts in the category of Assistant Director of Agriculture in the Andhra
Pradesh Agricultural Service. Although in the said notification stipulations
were made in respect of grant of reservation for women to the extent of 30%, no
such stipulation was made in respect of the vacancies in the category of
Assistant Director of Agriculture. This appeal involves the question of
reservation of women in the said category.
3.
Appellants herein had been working as Agricultural Officer in Andhra Pradesh
Agricultural Service. They, in terms of the said notification, applied for the
said posts. A screening test was to be held therefor. About 510 candidates
appeared for the screening test on 27.12.1992.
4.
Several original applications were filed before the Andhra Pradesh
Administrative Tribunals claiming different reliefs and on different grounds.
Appellant
herein filed an original application which was registered as OA No.6451 of 1992
questioning the carry forward of vacancies from the year 1976; the omission to
make zonal reservation; prescription of minimum and maximum age limits by way
of eligibility criteria as a result whereof, allegedly, some of the
agricultural officers were deprived of their right to apply for the posts.
Indisputably, interim orders were passed in January 1993 by the Tribunal which
remained in force till the disposal of the said original applications.
5. The
State of Andhra Pradesh issued GOMs No.928 G.A.D. on or about 6.10.1995
providing for reservations of women candidates to the extent of 30% in the
matter of direct recruitment with retrospective effect from 2.1.1984. By reason
of another Notification issued on 28.5.1996, the percentage of reservation for
women was increased to 331/3%. Original Applications filed by the petitioners
as also those of other employees were dismissed by the Tribunal on 23.11.1998.
6. An
application filed by the Andhra Pradesh Public Service Commission to short-list
the candidates was allowed by the Tribunal by an order dated 14.11.2000 by
holding a fresh screening test for the 510 candidates who had appeared therein
on 27.12.1992 and to finalise the result. A Notification for conducting a fresh
screening test was issued on 12.12.2000 pursuant whereto a second screening
test was conducted on 7.1.2001. Appellant, although appeared, did not pass the
said test.
7.
Inter alia, on the premise that a very limited time had been granted to them
for appearing in the second screening test as also on the ground that no
reservation for women could be provided for in terms of the said Notification
dated 28.5.1996, an original application marked as OA No. 83 of 2001 was filed
by the appellants before the Tribunal on 8.1.2001. No order of stay was passed
therein.
8. The
Public Service Commission interviewed the candidates on 8.1.2001 and 9.1.2001
who had been found suitable therefor.
An
interim order was passed by the Tribunal only on 9.1.2001.
However,
by order dated 1.8.2003, the original applications were dismissed by the
Tribunal holding that the selections made by the Commission did not call for any
interference except to the extent that the selections have to be revised
restricting the reservation in favour of women to the extent of 30% and
wherever vacancies which were reserved to be filled by women candidates could
not be filled for want of women candidates, they should be filled up by men in
terms of the rules existing at the time of notification.
9.
Writ petition filed by the appellants questioning the same was dismissed. A
writ application was also filed by the Andhra Pradesh Public Service Commission
challenging the decision of the Tribunal restricting reservation for women to
30% instead of 331/3%. By reason of the impugned judgment both the writ
petitions have been dismissed.
10.
Not only the original applicants but the Andhra Pradesh Public Service
Commission also are, thus, before us.
11.
Mr. Mohan Rao, learned counsel appearing on behalf of the appellant, would
submit that keeping in view the fact that for the purpose of giving an
opportunity to the appellants herein for appearance in the second test, only a
few days time had been granted by the Commission, the same must be held to
be wholly arbitrary. It was furthermore contended that by reason of any
notification issued subsequent to the date of advertisement, a provision for
reservation of women could not have been made.
12.
Learned counsel appearing on behalf of the Andhra Pradesh Public Service
Commission, on the other hand, submitted that as on the date of publication of
the notification, selection process was not over, the Tribunal and consequently
the High Court committed an error in opining that reservation for women should
have been kept confined to 30% only.
The
Notification being GOMs No.928 dated 6.10.1995 reads thus :
&In
exercise of the powers conferred by the proviso to Article 309 read with clause
(4) of Article 16 and Article 335 of the Constitution of India, the Governor of
Andhra Pradesh hereby makes the following amendment to the Andhra Pradesh State and Subordinate Service Rules.
2. The
amendments hereby made shall be deemed to have come into force in so far as it
relates to the reservation to the extent of 30% of posts:- (a) with effect from
the 2nd January, 1984 to each category of O.C., S.C., S.T., and to the
unclassified B.Cs; and (b) with effect from the 17th October, 1990 to the
categories of B.Cs as classified into groups the physically handicapped and Ex-
servicemen quota.
AMENDMENT
In the
Andhra Pradesh State and Sunbordinate Services Rules, for Sub-rule (2) of Rule
22-A, the following shall be substituted namely:- &(2) In the matter of
direct recruitment to posts for which women and men are equally suited, there
shall be reservation to women to an extent of 30% of the posts in each category
of O.C., B.C-A, B.C.B., B.C.C., B.C.D., S.C., S.T. and physically handicapped
and Ex-Servicemen quota.
Provided
that if sufficient number of women candidates are not available the vacancies
shall be filled in by men.
EXPLANATION: &It is hereby clarified that
all sections made in accordance with sub-rule (2) prior to its amendment shall
be and shall be deemed always to have been made in accordance with this rule;
and shall not entitle any person to enforce 30% reservation merely on the
ground that this amendment is made with retrospective effect.
(BY
ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH)
It is
now a well settled principle of law that the rules which would be applicable
for selecting the candidates would be the one which were prevailing at the time
of the notification. It is also equally well settled that the State may,
subject to constitutional limitations, amend the rule with retrospective
effect. Rule 22-A which was applicable as on the date of the said notification
reads as under :
&Rule
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 : (G.O.Ms. No.472, G.A.,
Dt.11.10.85) 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 at least 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 (Vide G.O.Ms. 691,
G.A. (Ser-D), Dt.22.11.1984, w.e.f. 2.1.1984)
11.
The women candidates, in terms thereof, were, therefore, only entitled to
preference. By reason of the said notification merely, the percentage has been
increased from 30% to 331/3%. It has been given a retrospective effect; as the
existing sub-rule (2) of Rule 22-A was substituted. By reason of the said
Notification, no existing right of any person has been taken away. In fact, as
the selection process was not over, the question of applicability of the said
notification would have fallen for consideration only when a final selection
list was to be made and not prior thereto.
12.
The State, in exercise of its power conferred upon it under the proviso
appended to Article 309 of the Constitution of India, is entitled to make rules
with retrospective effect and retro-active operation. Ordinarily, in absence of
any rule and that too a rule which was expressly given a retrospective effect,
the rules prevailing as on the date of the notification are to be applied.
But if
some rule has been given a retrospective effect which is within the domain of
the State, unless the same is set aside as being unconstitutional, the
consequences flowing therefrom shall ensure. In such an event, the applicable
rule would not be the rule which was existing but the one which had been
validly brought on the statute book from an anterior date. The Tribunal and the
High Court, therefore, in our opinion, committed an error in opining otherwise,
particularly when the constitutionality of the said rule was not in question.
13. In
N.T. Devin Katti v. Karnataka Public Service Commission [(1990) 3 SCC 157],
this Court categorically held :
&11.
There is yet another aspect of the question.
Where
advertisement is issued inviting applications for direct recruitment to a
category of posts, and the advertisement expressly states that selection shall
be made in accordance with the existing rules or government orders, and if it
further indicates the extent of reservations in favour of various categories,
the selection of candidates in such a case must be made in accordance with the
then existing rules and government orders. Candidates who apply, and undergo
written or viva voce test acquire vested right for being considered for
selection in accordance with the terms and conditions contained in the
advertisement, unless the advertisement itself indicates a contrary intention.
Generally,
a candidate has right to be considered in accordance with the terms and
conditions set out in the advertisement as his right crystallises on the date
of publication of advertisement, however he has no absolute right in the
matter. If the recruitment Rules are amended retrospectively during the pendency
of selection, in that event selection must be held in accordance with the
amended Rules. Whether the Rules have retrospective effect or not, primarily
depends upon the language of the Rules and its construction to ascertain the
legislative intent. The legislative intent is ascertained either by express
provision or by necessary implication; if the amended Rules are not
retrospective in nature the selection must be regulated in accordance with the
rules and orders which were in force on the date of advertisement.
Determination
of this question largely depends on the facts of each case having regard to the
terms and conditions set out in the advertisement and the relevant rules and
orders. Lest there be any confusion, we would like to make it clear that a
candidate on making application for a post pursuant to an advertisement does
not acquire any vested right of selection, but if he is eligible and is
otherwise qualified in accordance with the relevant rules and the terms
contained in the advertisement, he does acquire a vested right of being
considered for selection is accordance with the rules as they existed on the
date of advertisement. He cannot be deprived of that limited right on the
amendment of rules during the pendency of selection unless the amended rules
are retrospective in nature. (Emphasis supplied) 14. In this case, the
qualification of a candidate is not in question.
Nobody
has been deprived of his right of being considered. Only a preferential right
had been given to the women. In that view of the matter, the High Court, in our
opinion, was not correct in taking the said view.
15.
The other contention of Mr. Rao that the candidates had given only seven
days time for making preparation to appear in the second screening test,
cannot, in our considered view, give rise to a ground for setting aside the
entire selection process. The Tribunal did not make any discrimination.
One
screening test had already been held. The number of candidates appeared in the
first screening test was 510. The Commission obtained the permission of the
Tribunal for holding the second screening test. It issued a notification on
12.12.2000 stating that such a test would be conducted on 7.1.2001. All the
candidates were given the same time for preparation.
Only
because the appellants herein were employees at the relevant time, the same by
itself could not confer on them any special privilege to ask for an extended
time. They had no legal right in relation thereto. 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 authority. They
are, therefore, estopped and precluded from questioning the selection process.
15.
For the reasons aforementioned, the appeals of the Andhra Pradesh Public
Service Commission are allowed and that of Marripati Nagaraja is dismissed with
costs. Counsels fee quantified at Rs.25,000/- (Rupees twenty five thousand
only).
16.
The Andhra Pradesh Public Service Commission is hereby directed to finalise the
selection process in the light of the judgment of this Court as expeditiously
as possible and not later than three months from the date of receipt of a copy
of this judgment.
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