Commission Vs. Baloji Badhavath & Ors.  INSC 695 (8 April 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2244 OF 2009 [Arising
out of SLP (Civil) No. 18308 of 2008] A.P. Public Service Commission
...Appellant Versus Baloji Badhavath & Ors. ...Respondents
S.B. SINHA, J :
Pradesh Public Service Commission is before us aggrieved by and dissatisfied
with a judgment and order dated 23.07.2008 passed by a Division Bench of the
Andhra Pradesh High Court in Writ Petition No. 16029 of 2008.
Government of Andhra Pradesh used to issue orders laying down norms to be
adopted for filling up of vacancies in Group - I services in the State
comprising of Deputy Collectors, Commercial Tax Officers, Assistant Prohibition
and Excise Superintendents, Assistant Commissioner of Labour, Deputy
Superintendent of Police Category-2, Divisional Fire Officers, District
Registrars, Assistant Audit Officer and Assistant Treasury Officer/ Assistant
Accounts Officer. The selection process takes place in two phases; the first being
holding of an examination for the purpose of shortlisting of the candidates and
the second being holding of the main examination followed by interview.
for preliminary examination as also the main examination, two criteria used to
be adopted; one for the general category candidates and other for the reserved
of the said procedure came up for consideration before a Division Bench of the
Andhra Pradesh High Court as far back in the year 1984 in S. Jafeer Saheb v.
State of Andhra Pradesh [1985 (2) APLJ 380].
similar question came up for consideration again in G. Raju 3 v. Government of
A.P. rep. by its Secretary [Writ Petition No. 24247 of 2004 decided on
31.12.2004] In S. Jafeer Saheb (supra), the contention of the State was that
the reservation of posts used to be made while admitting the candidates for
examination itself and not in the final selection in the ratio of 1:15. The
question which, thus, posed, was as to whether admission of candidates for the
main examination by applying compensatory preference even at the stage of
admission in the main examination is violative of Articles 14 and 16 of the
Constitution of India. Taking note of the provisions contained in Articles 14,
16 and 335 of the Constitution of India, the High Court held:
"11. The purpose
of holding a screening test is to ensure the basic standard of eligibility of
the candidates and even at the stage of admission to the main examination the
rule of reservation of posts cannot be applied. Reservation for applicants is
not permissible under Art. 16(4).
12. The learned
Advocate-General submits that if reservation rule is not followed even at the
stage of admitting candidates for the main examination, a reserved vacancy is
likely to remain unfilled. It is nobody's case that as many candidates as there
are reserved vacancies have not been qualified for the main examination. Is
there any rule of relaxation based on reservation for a pass in the H.S.C.
Examination or Intermediate Examination or B.A. Examination? There can be no
relaxation 4 or waiver of a basic standard of performance.
There can be no
compromise with the maintenance of administrative efficiency which is barred by
Art. 335 of the Constitution."
It was furthermore held:
"14. Time is now
ripe for Courts to lay down the limits to the lowering of standards for the
purpose of compensatory preference. The intensity of compensatory preference
cannot be at the expense of even-handedness and merit and cannot proliferate to
such an extent as to prove fatal to the basic proficiency and efficiency. The
intensity must vary depending on the nature of the compensatory discrimination
whether it is primarily for individual benefit or whether the quality of public
service is directly affected.
Krishna Iyer, J.,
observed in State of Kerala v. N.M. Thomas that "to relax basic
qualification is to compromise with the minimum administrative efficiency and
is presumably barred by Art. 335".
Lowering of standards
for the purpose of compensatory discrimination is limited to competing
commitments to efficient administration.
demands concern for quality and prohibits waiver or abandonment of quality.
In Janki Prasad v.
State of Jammu & Kashmir, the Supreme Court observed that the setting of
absurdly low minimal scores made it a "travesty of selection".
*** *** *** 16...When
a candidate is ineligible or does not come up to a basic standard, no
relaxation can be 5 granted. As already pointed out such concession of
preference based on reservation is not granted for a pass in the H.S.C.
Examination or Intermediate Examinat6ion or BA Degree Examination, because they
are eligibility test and not proficiency test."
pursuant to or in furtherance of the said judgment of the High Court dated
28.12.1984, the State of Andhra Pradesh issued fresh G.O.Ms. No. 570 dated
31.12.1997, providing that the candidates who had applied for Group - I
services would be shortlisted based on a preliminary examination (Screening
Test) in the ratio of 1:50 to the total number of vacancies available at the
material time irrespective of community, the relevant portions whereof read as
of candidates to be admitted to the Written examination (Convention Type) would
be 50 (fifty) times to the total number of vacancies available at material time
irrespective of communities.
3. The papers except
paper 2, i.e., General English may be answered in English or Telugu or Urdu
chosen by the candidates. However, a candidate is not permitted to write part
of the paper in English and part of it in Telugu.
4. The paper on
General English is a qualifying one and the standard of this paper is 6 that
of S.S.C. The minimum qualifying marks in this paper are 40% for O.Cs. 35% for
B.Cs. and 30% for SC/STs and P.H. These marks are not counted for ranking.
5. In the event of
the S.C. and S.T. candidates not coming up for selection with the existing
minimum prescribed for the selection in the competitive examination conducted
by the commission, their selection shall be considered on the basis of rank
with reference to their performance in the written and Oral competitive
7. Indisputably, when
in terms of the said GOMs, a notification in Advertisement No. 21 of 2003
calling applications for Group - I Services was issued in the year 2003,
another writ application came to be filed by G. Raju and seven others
questioning the legality thereof.
The Andhra Pradesh
High Court by a judgment an order dated 31.12.2004 passed in Writ petition No.
24247 of 2004, opined:
contention of the learned counsel for the petitioners is that at least the
ratio of 1:50 should be maintained in respect of each post reserved for
community reservation, in such an event, it will enable the reserved candidates
to effectively participate in the selection and candidates from out of them
would be selected within the reservation category, but this contention 7
though appears to be appealing, cannot be accepted. There cannot be any upper
limit. If this has to be taken into consideration, then 1:50 ratio should be
considered to be appropriate and reasonable, and inasmuch as it is assured by
the A.P.P.S.C. that there will not be any carry forward vacancies, we are not
inclined to interfere with the order passed by the Tribunal."
However, in that writ
petition, the validity of GOMs dated 31.12.1997 was not in question.
8. A notification
bearing No. 31 of 2007 was issued for Group - I Services Direct Recruitment
(General) on 27.12.2007 notifying 196 vacancies; inter alia laying down:
"3. Caste &
Community: Community Certificate issued by the competent authority in terms of
G.O.Ms No. 58, SW(J) Dept., dt: 12/5/97 should be submitted at appropriate
time. As per General Rules for State and Subordinate Service Rules, Rule 2(28)
Explanation: - No person who professes a religion different from Hinduism shall
be deemed a member of scheduled caste. BCs, SCs & STs belonging to other
States are not entitled for reservation, candidates belonging to other States
shall pay the prescribed fee of Rs.
120/- (One hundred
and Twenty only) through I.P.O. Otherwise such applications will not be
considered and no correspondence on this will be entertained.
4. Reservation for
local candidates is not applicable as per concerned Departmental Special Rules,
except Post Code - 8, i.e., AAO in AP State Audit Service.
5. Reservation and
eligibility in terms of General Rule 22 & 22-A of A.P. State and
Subordinate Service Rules are applicable.
*** *** ***
10. The Reservation
to Women will apply as per General Rules. For P.C. No. 066, women candidates
are not eligible."
Relaxation of age was
granted for the SC/ST and BCs candidates by five years. The reserved categories
of candidates were exempted from payment of fees.
9. Pursuant to or in
furtherance of the said notification, 1,68,000/- candidates applied. A
preliminary examination was held for all the candidates. Having regard to the
ratio of the number of candidates to be admitted for main examination being 1:
50, 9,800 candidates were shortlisted to take the main examination.
herein appeared at the said preliminary examination without any demur
whatsoever. They, however, having not been shortlisted filed an original
application before the Andhra Pradesh State Administrative Tribunal. The said
original application was dismissed.
11. Aggrieved by and
dissatisfied therewith, they filed a writ petition before the Andhra Pradesh
High Court which by reason of the impugned judgment has been allowed. The
Commission was impleaded as a party in the writ petition.
The High Court,
however, directed the Commission to prepare a statement showing the ratio as
also category-wise data of the candidates permitted to appear for the Main
examination as per the Commission.
Despite noticing the
ratio laid down, in regard to certain category of candidates, as for example,
OC, BC(C), BC(E), women and physically handicapped candidates, in its earlier
decisions in S. Jafeer Saheb (supra) as also in G. Raju (supra), it was held
that in the said case as the ratio of the candidates in respect of those
categories fell much short of 1:15 ratio, the said GOMs dated 31.12.1997 as
also the notification dated 27.12.2007 were held to be ultra vires Articles 14
and 16 of the Constitution of India.
10 It was stated
that both in S. Jafeer Saheb (supra) as also in G. Raju (supra), the GOMs No.
570 dated 31.12.1997 was not challenged at all.
dated 27.12.2007 was said to be contrary to the principles of natural justice
as also Articles 14 and 16 of the Constitution of India on the following
Non-implementation of community-wise reservation attracts the wrath of Article
16 of the Constitution of India.
(ii) The right of
reservation must be recognized at all levels.
Although S. Jafeer
Saheb (supra) as also G. Raju (supra) lay down good law but as community - wise
reservation did not fall for consideration therein, the said decisions were not
binding upon it.
(iii) Non-fixation of
a cut-off mark for each category of community would also be violative of
Articles 14 and 16 of the Constitution of India.
12. Mr. L. Nageshwara
Rao, learned senior counsel appearing on behalf of the appellant and Mr. R.
Sundaravaradhan, learned senior counsel appearing on behalf of the respondent -
State, would contend:
11 (i) As Article
16(4) of the Constitution of India provides for an enabling provision, no writ
of mandamus could be issued.
(ii) Right of the
candidates being only to be considered for selection in terms of the extant
rules, the High Court committed an error in passing the impugned judgment.
(iii) The impugned
judgment would be detrimental to the interests of the meritorious candidates
belonging to the reserved category.
(iv) The writ
petitioners - respondents having failed to qualify in the preliminary
examination, are estopped and precluded from questioning the validity of GOMs
No. 570 or the notification dated 27.12.2007 issued by the appellant -
(v) Reservation for
women and physically handicapped persons being an incident of horizontal
reservation and not a vertical reservation, the impugned judgment cannot be
13. Mr. P.P. Rao,
learned senior counsel appearing on behalf of the respondents, however, while
conceding that the writ petitioners - respondents cannot claim any right of
reservation and no writ of mandamus can be issued, contended:
12 (i) As the
Constitution contemplates upliftment of weaker sections by providing a
percentage of seats for employment in the State and having regard to the fact
that both clauses (1) and (4) of Article 16 of the Constitution of India provide
for valid classification, the impugned judgment should not be interfered with.
(ii) Judging of the
merit of the candidates having regard to the provisions of Article 335 of the
Constitution of India per se should not allow the State and the Commission to
stop all the candidates at the first gate and then prevent them from appearing
at the main examination as thereby constitutional scheme to provide reservation
would be frustrated to a great extent.
(iii) The means to
achieve the constitutional object and the goals should not be defeated by
inserting procedural provisions as a result whereof what is being given by one
hand should not be permitted to be taken away by the other.
(iv) Reservation made
in favour of women, physically handicapped, etc, although pertains to
horizontal reservation, the candidates of the said categories cannot be treated
(v) A candidate only
by appearing in an examination cannot waive his fundamental or a statutory
(vi) The State having
provided for reservation in terms of Rules 22 and 22-A of the Andhra Pradesh
State and Subordinate Service Rules, 1996 and furthermore, such a right having
also been created in terms of Regulation 14-A of the Andhra Pradesh Public
Service Commission Regulations, 1963, the writ petitioners - respondents
obtained an indefeasible right for consideration of their candidature so as to
enable them to compete with other candidates for appointment in the said post
which cannot be permitted to be taken away by reason of the impugned GOMs No.
570 and the notification dated 27.12.2007.
(vii) The expression
"irrespective of communities" used in GOMs No.
570 even otherwise
cannot be read in such a manner so as to violate the constitutional scheme, as
reservation is not based on any religion or race, particularly in view of the
fact that the makers of the Constitution of India thought of a casteless and
(viii) The High Court
having declared the GOMs No. 570 as unconstitutional and the State having not
preferred any special 14 leave petition thereagainst, the Andhra Pradesh
Public Service Commission cannot be said to have any locus standi to maintain
14. The vacancies
which were to be filled up by the State pertained to Group - I services. The
State indisputably subject to the constitutional limitations having regard to
its power contained in the proviso appended to Article 309 of the Constitution
of India is entitled to frame rules laying down the mode and manner in which
vacancies are to be filled up.
15. If the State has
the legislative competence to frame rules, indisputably, it can issue
governmental orders in exercise of its power under Article 162 of the
Constitution of India. It adopted one procedure. It was held to be ultra vires
by the Andhra Pradesh High Court in S. Jafeer Saheb (supra). It attained
finality. The State amended the procedure in the light of the said decision by
GOMs No. 570 dated 31.12.1997. No new policy was laid down which can be said to
be contrary to or inconsistent with the decision of the Andhra Pradesh High
Court in S. Jafeer Saheb (supra). A notification containing similar provisions
issued by the Andhra Pradesh Public Service Commission in 2003 was questioned.
It may be true that the 15 validity of the GOMs itself was not questioned but
if the terms of the notification were held to be unconstitutional, GOMs could
have also been declared as such.
16. The Division
Bench of the High Court indisputably was bound by the said decision. It,
however, proceeded to examine the constitutionality of the GOMs dated
31.12.1997 and the notification dated 27.12.2007 inter alia on the premise that
the validity of the said GOM and the notification was not tested on the
touchstone of Articles 14 and 16 of the Constitution of India.
17. The Constitution
of India lays down provisions both for protective discrimination as also
affirmative action. Reservation of posts for the disadvantaged class of people
as also seats in educational institutions are provided for by reason of
Articles 15 and 16 of the Constitution of India.
Reservation made for
the members of the Scheduled Castes, Scheduled Tribes and other Backward
Classes would, however, is subject to Article 335 of the Constitution of India.
Concededly, no citizen of India can claim reservation as a matter of right. The
provisions contained in Articles 15 and 16 of the Constitution of India are
merely enabling provisions. No writ of or in the nature of mandamus, thus,
could be issued. [See C.A. Rajendran v.
16 Union of India
& Others, (1968) 1 SCR 721 at 731-733, Indra Sawhney and Others v. Union of
India and Others [1992 Supp (3) SCC 217, para 165 to 169, 428 to 432, 741 and
742, Ajit Singh and Others (II) v. State of Punjab and Others (1999) 7 SCC 209,
para 32 to 39, State of Punjab and Others v.
Manjit Singh and
Others (2003) 11 SCC 559, para 7 and 12] 18. The State, however, have made
provisions for reservation.
appellant - Commission has made regulations known as Andhra Pradesh Public
Service Commission Regulations, 1963, Regulation 14-A whereof reads as under:
"It shall be
necessary for the Commission in the matter of recruitment to the posts and
services to strictly adhere to wherever applicable the provisions contained:
(i) in the General
Rule 22 and 22-A;"
19. The rules of
procedure for holding the said examination have also been prescribed known as
the Andhra Pradesh Public Service Commission Rules of Procedure; Rule 4 whereof
reads as under:
"4. Where a
direct recruitment is to be made by selection, i.e., after interview only, and
where the 17 number of qualified petitioners is unduly large having regard to
the actual number of vacancies available, the Commission may restrict the number
of candidates to be called for interview to such extent as it may deem fit.
Such shortlisting may be done by the Commission either by holding a written
test or on the basis of preferential or higher qualifications and experience
and after taking into account the requirements with reference to the Rules 22,
22-A of the General Rules for State and Subordinate Services and the Rule of
reservation in favour of local candidates where they are applicable."
20. The State of
Andhra Pradesh in exercise of its power conferred upon it by the proviso
appended to Article 309 of the Constitution of India framed rules known as the
Andhra Pradesh State and Subordinate Service Rules, 1996. Rules 22 and 22-A
thereof indisputably provide for reservation for appointments to a service,
class or category in favour of Scheduled Castes, Scheduled Tribes, Backward
Classes, women, physically handicapped, meritorious sportsmen, ex-servicemen,
etc. Special rules and adhoc rules have also been made for reservation of women
by way of Rule 22-A thereof, stating:
reservation in appointment:
anything contained in these rules or special rules or Adhoc Rules:
18 (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, there
shall be reservation to women to an extent to 33 1/3% of the posts in each
category of Open Competition, Backward Classes (Group - A), Backward Classes
(Group - B), Backward Classes (Group - C), Backward Classes (Group - D),
Scheduled Castes, Scheduled Tribes and Physically Handicapped and Ex-servicemen
21. Appellant -
Commission which has been constituted in terms of Article 315 of the
Constitution of India is bound to conduct examination for appointment to the
services of the State in terms of the Rules framed by the State. It is,
however, free to evolve procedure for conduct of examination.
While conducting the
examination in a fair and transparent manner as also following known principles
of fair play, it cannot completely shut its eyes to the constitutional
requirements of Article 335 of the Constitution of India, which reads as under:
19 "335 -
Claims of Scheduled Castes and Scheduled Tribes to services and posts The
claims of the members of the Scheduled Castes and the Scheduled Tribes shall be
taken into consideration, consistently with the maintenance of efficiency of
administration, in the making of appointments to services and posts in
connection with the affairs of the Union or of a State:
Provided that nothing
in this article shall prevent in making of any provision in favour of the
members of the Scheduled Castes and the Scheduled Tribes for relaxation in
qualifying marks in any examination or lowering the standards of evaluation,
for reservation in matters of promotion to any class or classes of services or
posts in connection with the affairs of the Union or of a State."
In State of Kerala
and Another v. N.M. Thomas and Others [(1976) 2 SCC 310], this Court opined:
"41. Article 335
of the Constitution states that claims of members of the Scheduled Castes and
scheduled tribes shall be taken into consideration in the making of
appointments to the services and posts in connection with affairs of the State
consistent with the maintenance of efficiency of administration. The impugned
rule and the impugned orders are related to this constitutional mandate.
Without providing for relaxation of special tests for a temporary period it
would not have been possible to give adequate promotion to 20 the lower
division clerks belonging to Scheduled Castes and scheduled tribes to the posts
of upper division clerks. Only those lower division clerks who were senior in
service will get the benefit of the relaxation contemplated by Rule 13-AA and
the impeached orders. Proipotion to upper division from lower division is
governed by the rule of seniority subject only to passing of the qualified
test. The temporary relaxation of test qualification made in favour of
Scheduled Castes and scheduled tribes is warranted by their inadequate
representation in the services and their overall backwardness. The
classification of the members of the Scheduled Castes and scheduled tribes
already in service made under Rule 13-AA and the challenged orders for
exempting them for a temporary period from passing special tests are within the
purview of constitutional mandate under Article 335 in consideration of they
claims to redress imbalance in public service and to bring about parity in all
communities in public services."
22. How the
Commission would judge the merit of the candidates is its function. Unless the
procedure adopted by it is held to be arbitrary or against the known principles
of fair play, the superior courts would not ordinarily interfere therewith. The
State framed Rules in the light of the decision of the High Court in S. Jafeer
Saheb (supra). Per se, it did not commit any illegality. The correctness of the
said decision, as noticed hereinbefore, is not in question having attained
finality. The matter, however, would be different if the said rules per se are
found to be violative 21 of Article 16 of the Constitution of India. Nobody
has any fundamental right to be appointed in terms of Article 16 of the
Constitution of India. It merely provides for a right to be considered
therefor. A procedure evolved for laying down the mode and manner for
consideration of such a right can be interfered with only when it is arbitrary,
discriminatory or wholly unfair.
23. We may notice
that in Chattar Singh v. State of Rajasthan [(1996) 11 SCC 742], Rule 13 of the
Rajasthan State and Subordinate Services (Direct Recruitment by Combined
Competitive Examinations) Rules, 1962 prescribing the mode of conducting
preliminary as also main examination had been interpreted, opining :
requires to be done is that the Public Service Commission has to consider the
number of vacancies notified or likely to be filled in the year of recruitment
for which notification was published. Then candidates who had appeared for the
Preliminary Examination and qualified for Main Examination are to be screened
by the test.
The object is to
eliminate unduly long list of candidates so that opportunity to sit for Main
Examination should be given to candidates numbering 15 times the notified
posts/vacancies in various services; in other words for every one post/vacancy
there should be 15 candidates. There would be wider scope to get best of the
talent by way of competition in the examination. The ultimate object is to get
at least three candidates or 22 as is prescribed, who may be called for viva
Therefore, the lowest
range of aggregate marks as cut-off for general candidates should be so worked
out as to get the required number of candidates including OBCs, Scheduled
Castes and Scheduled Tribes. The lowest range would, therefore, be worked out
in such a way that candidates numbering 15 times the notified posts/vacancies
would be secured so as to afford an opportunity to the candidates to compete in
the Main Examination.
15. Under the
proviso, if that range has not been reached by the candidates belonging to the
SCs or the STs, there may be 5% further cut-off from the last range worked out
for the general candidates so as to declare them as qualified for appearing in
the Main Examination. In other words, where candidates belonging to the SCs and
STs numbering 15 times the total vacancies reserved for them are not available
then the Service Commission has to go down further and cut off 5% of the marks
from the lowest of the range prescribed for general candidates and then declare
as eligible the SC and ST candidates who secured 5% less than the lowest range
fixed by PSC for general candidates so as to enable them to appear for the Main
Examination. The candidates who thus obtain qualifying marks are eligible to
appear and write the Main Examination. The respective proportion of 1:3 or as
may be prescribed and candidates who qualified in the Main Examination will be
called by the Commission, in their discretion, for interview. The Commission
shall award marks to each candidate interviewed by them, having regard to their
character, personality, address, physique and knowledge of Rajasthani culture
as is in vogue as per rules. However, for selection to the Rajasthan Police
Service, candidates having `C' Certificate of NCC will be 23 given preference.
The marks so awarded shall be added to the marks obtained in the Main
Examination by each such candidate.
16. In working out
this procedure, if the minimum of 15 times of the candidates are identified and
results declared, it would not be necessary to pick up more General/Reserved
candidates. It would not be necessary to declare the result of more than 15
times the total notified vacancies/posts so as to enable them to compete in the
The object of
screening test is to eliminate unduly long number of persons to appear for Main
Examination. If more candidates are called by declaring their result in
Preliminary Examination, the object of Rule 13 would be frustrated."
24. The Commission
contends that in all the past examinations held, the vacancies pertaining to
the reserved categories had been filled up. The vacancies were not required to
be carried forward as sufficient numbers of candidates belonging to the
reserved category were available. It is in the aforementioned context, a
statement was made in G. Raju (supra) that the Commission shall not carry
forward the vacancies.
In Pitta Naveen Kumar
and Others v. Raja Narasaiah Zangiti and Others [(2006) 10 SCC 261], this Court
24 "52. The
authority of the State to frame rules is not in question. The purport and
object for which the said notifications were issued also cannot be said to be
wholly arbitrary so as to attract the wrath of Article 14 of the Constitution
of India. The appellants herein no doubt had a right to be considered but their
right to be considered along with other candidates had not been taken away.
Both the groups
appeared in the preliminary examination. Those who had succeeded in the
preliminary examination were, however, allowed to sit in the main examination
and the candidature of those had been taken into consideration for the purpose
of viva voce test who had passed the written examination."
25. Indisputably, the
preliminary examination is not a part of the main examination. The merit of the
candidate is not judged thereby. Only an eligibility criterion is fixed. The
papers for holding the examination comprise of General Studies and Mental
Ability. Such a test must be held to be necessary for the purpose of judging
the basic eligibility of the candidates to hold the tests. How and in what
manner the State as also the Commission would comply with the constitutional
requirements of Article 335 of the Constitution of India should ordinarily not
be allowed to be questioned.
25 The proviso
appended to Article 335 of the Constitution, to which our attention has been
drawn by Mr. Rao, cannot be said to have any application whatsoever in this
case. Lowering of marks for the candidates belonging to the reserved candidates
is not a constitutional mandate at the threshold. It is permissible only for
the purpose of promotion. Those who possess the basic eligibility would be
entitled to appear at the main examination. While doing so, in regard to
General English whereas the minimum qualifying marks are 40% for OCs, it would
be 35% for BCs and 30% for SC/STs and physically handicapped persons. However,
those marks were not to be counted for ranking. We have noticed hereinbefore,
that candidates belonging to the reserved categories as specified in the
notification are not required to pay any fee. Their age is relaxed upto five
years. It is, therefore, not correct to contend that what is given by one hand
is sought to be taken by another.
They can, thus,
appear in the examination for a number of times.
right conferred upon the writ-petitioners - respondents in terms of Rules 22
and 22-A of the Andhra Pradesh State and Subordinate Service Rules, 1996 was to
be protected. The extent of relaxation has been recognized. By reason of such a
provision, the right to be considered has not been taken away.
26. Judging of merit
may be at several tiers. It may undergo several filtrations. Ultimately, the
constitutional scheme is to have the candidates who would be able to serve the
society and discharge the functions attached to the office. Vacancies are not
filled up by way of charity. Emphasis has all along been made, times without
number, to select candidates and/ or students based upon their merit in each
category. The disadvantaged group or the socially backward people may not be
able to compete with the open category people but that would not mean that they
would not be able to pass the basic minimum criteria laid down therefor.
27. We have been
informed at the bar that 12 handicapped people have appeared at the main
examination and, thus, it would be possible to fill up the posts even from that
category of candidates.
28. Submission of Mr.
Rao that by reason of such a process, only the forward sections of backward
classes who have the advantage of undergoing coaching classes, etc. would be
given preference may not be correct. No statistical data had been placed before
the High Court or before us. We have not been furnished any information as to
on what basis, such a contention could be raised. All the candidates are highly
educated. Merit is 27 not the monopoly of people living in urban areas. The
State must adopt some criteria. It having regard to its limited resources
cannot allow lakhs and lakhs of candidates to appear at the examination as also
at the interview.
It is bound to devise
some procedure to shortlist the candidates. Rule 4 of the Andhra Pradesh Public
Service Commission Rules of Procedure which refers to Rules 22 and 22-A of the
Andhra Pradesh State and Subordinate Service Rules, 1996 would apply only where
shortlisting is done. The first part of the said Rule empowers the Commission
to restrict the number of candidates to be called for interview to such extent
as it may deem fit.
however, it may hold a written test or provide for a preferential or higher
qualification and experience and only for that purpose it is required to take
into account the requirements with reference to Rules 22 and 22A of the Andhra
Pradesh State and Subordinate Service Rules, 1996 and the rule of reservation
in favour of local candidates.
29. Strong reliance
has been placed by Mr. Rao on Sangram Singh v. Election Tribunal, Kotah, Bhurey
Lal Baya [(1955) 2 SCR 1] wherein Vivian Bose. J., stated as under:
28 "Now a code
of procedure must be regarded as such. It is procedure, something designed to
facilitate justice and further its ends: not a penal enactment for punishment
and penalties; not a thing designed to trip people up. Too technical a
construction of sections that leaves no room for reasonable elasticity of
interpretation should therefore be guarded against (provided always that
justice is done to both sides) lest the very means designed for the furtherance
of justice be used to frustrate it."
The said observation
was made keeping in view the concept of justice. By reason of providing for a
preliminary examination, the right of the reserved category candidates has not
been taken away. The means cannot be allowed to defeat the ends which the
constitutional scheme seeks to achieve.
30. Reliance has also
been placed by Mr. Rao on Akhil Bharatiya Soshit Karamchari Sangh (Railway) v.
Union of India and Others [(1981) 1 SCC 246] wherein this Court held:
on this footing, the fundamental right of equality of opportunity has to be
read as justifying the categorisation of SCs & STs separately for the
purpose of "adequate representation" in the services under the State.
The object is constitutionally sanctioned in terms, as 29 Articles 16 (4) and
46 specificate. The classification is just and reasonable. We may, however,
have to test whether the means used to reach the end are reasonable and do not
outrun the purposes of the classification. Thus the scope of the case is
31. We have proceeded
on the same assumption. What was in question in that case was as to whether in
matter of promotions reservation of posts for SC/ST candidates is
unconstitutional. It is now a settled law that it is not.
The said observation
inter alia was in tone with the opinion of Ray, CJ in N.M. Thomas (supra).
observations, in our opinion, have no application to the fact of the present
32. Submission of Mr.
Rao is that the expression "irrespective of communities" has wrongly
been used. In support of the said contention reliance has been placed on the
expression "Irrespective of Race" in the Words and Phrases, Permanent
Edition, Volume 22A, page 506, which is in the following terms:
30 "By Act May
2, 1890, c. 182 ' 31, 26 Stat. 94, Sections 566, 567, Mansf. Dig., was extended
over Indian Territory with a proviso excepting Indians and their estates. By
act June 7, 1897, C.3, ' 1, 30 Stat. 83, such laws were made to apply to all
persons in the territory "irrespective of race" and by the Curtis Act
June 28, 1898, C. 517, ' 26, 30 Stat. 504, it was provided that the laws of the
Indian tribes should not longer be enforced. Held that by virtue of such
provisions, a noncitizen husband of a Creek allottee who died after the birth
of a child of the marriage was entitled by the curtesy to a life estate in her
Armstrong v. Wood,
195 F. 137, 141"
33. The word
"community", however, is understood in different senses, keeping in
view the purport and object for which the said term is used. It may be given a
natural meaning. It may have to be read along with the words `caste' and
`religion' in which event it will have to have a narrower meaning than the
dictionary meaning of a body of people having same common interest. [See
Advanced Law Lexicon, 3rd edition, 2005, page 907] 34. Indisputably, when the
said words were used, it took its clue from S.
Jafeer Saheb (supra).
31 The expression
might have been loosely used but its purport and object had been understood by
candidates including the writ petitioners.
The provisions for
holding the preliminary examination were for the purpose of maintaining a basic
standard. The High Court has directed deletion of the said words.
35. Mr. P.P. Rao has
relied upon the following paragraph of the decision of this Court in N.M.
Castes and scheduled tribes are not a caste within the ordinary meaning of
caste. In Bhaiyalal v. Harikishan Singh12 this Court held that an enquiry
whether the appellant there belonged to the Dohar caste which was not recognised
as a scheduled caste and his declaration that he belonged to the Chamar caste
which was a scheduled caste could not be premitted because of the provisions
contained in Article 341. No court can come to a finding that any caste or any
tribe is a scheduled caste or scheduled tribe. Scheduled caste is a caste as
notified under Article 366(25). A notification is issued by the President under
Article 341 as a result of an elaborate enquiry. The object of Article 341 is
to provide protection to the members of Scheduled Castes having regard to the
economic and educational backwardness from which they suffer."
36. For the views, we
have taken earlier, it is not necessary for us to go into the above mentioned
larger question particularly having regard to the recent decision of this Court
in Ashoka Kumar Thakur v. Union of India and Others [(2008) 6 SCC 1] 37. One
other aspect of the matter must be kept in mind.
statement is prepared, as has been directed by the High Court, it may be detrimental
to the interest of the meritorious candidates belonging to the reserved
categories. The reserved category candidates have two options. If they are
meritorious enough to compete with the open category candidates, they are
recruited in that category. The candidates below them would be considered for
appointment in the reserved categories. This is now a well-settled principle of
law as has been laid down by this Court in several decisions. [See for example,
Union of India and Anr. V. Satya Prakash and Ors. (2006) 4 SCC 550, para 18 to
20, Ritesh R. Shah v. Dr. Y.L. Yamul (1996) 2 SCR 695 at 700-701, R.K. Daria v.
Rajasthan Public Service Commission, (2007) 8 SCC 785, para 9]
38. As we have
entered into the merit of the matter, in our opinion, it is not necessary to
determine the question as to whether the writ petitioners - 33 respondents
having appeared in the examination were estopped and precluded from filing the
39. Reservation of
women, handicapped etc. is on a horizontal basis.
Reservation to the
category of candidates has to be given irrespective of the class or category of
candidates. A final selection has to be made. If such a procedure, as directed
by the High Court, is to be taken recourse to, the same would give rise to a
40. So far as the
question of locus standi of the appellant to file this Special Leave Petition
is concerned, we are of the opinion that it has the locus standi. The High
Court not only has set aside the GOMs dated 31.12.1997 but it has also set
aside the notification dated 27.12.2007. If the High Court's judgment is to be
implemented, a fresh selection procedure has to be undertaken by the appellant.
Furthermore, in terms of Order 41, Rule 4 of the Code of Civil Procedure, the
appellate court, in the event, finds merit in the appeal at the instance of one
of the respondents may set aside the entire judgment although another
respondent had not appealed thereagainst.
41. The Commission
had undertaken the task of holding preliminary examination. It had followed the
procedure laid down in its notification issued in this behalf and the GOMs
issued by the State. It, therefore, could maintain a writ petition.
42. Mr. Rao, however,
submits that in order to maintain an appeal, the Commission should have been a
`person aggrieved'. Reliance in this behalf has been placed on Thammanna v. K.
Veera Reddy Ors. [(1980) 4 SCC 62 :
(1981) 1 SCR 73]
wherein in the context of the provisions of Section 116C of the Representation
of People Act, 1951, it was held:
general proposition, therefore, it may safely be stated that before a person is
entitled to maintain an appeal under Section 116-C, all the conditions
mentioned below, must be satisfied:
(1) that the
subject-matter of the appeal is a conclusive determination by the High Court of
the rights with regard to all or any of the matters in controversy, between the
parties in the election petition, (2) that the person seeking to appeal has
been a party in the election petition, and (3) that he is a "person
aggrieved", that is a party who has been adversely affected by the
35 No exception to
the rule can be taken. We are not, however, dealing with the election petition.
We are dealing with a rule laid down by a constitutional authority as also the
43. Mr. Rao also
relied upon the following paragraph of a decision of this Court in A.P. Public
Service Commission v. P. Chandra Mouleesware Reddy [(2006) 8 SCC 330]:
"13. The State
of Andhra Pradesh, we may notice, did not question the order of the Tribunal.
The Commission was required to carry out fresh exercise in compliance with the
directions of the Tribunal. For the said purpose, no fresh selection process
was to be undertaken. If the State did not have any objection to fill up the
said posts realising the mistake committed by it; we fail to see any reason as
to why the Commission should have felt aggrieved by the order of the
In that case, the
State had accepted the judgment of the High Court.
A mistake on the part
of the State to issue the impugned direction was in question therein. It was in
that context the aforementioned observations had been made.
Therein 19 posts were
to be filled up whereas a direction was issued only to fill up ten posts. The
Tribunal directed the State to fill up all 19 36 posts. The State of Andhra
Pradesh did not question the order of the Tribunal. Even the Commission was not
required to carry out any fresh exercise to comply with the direction of the
Tribunal. As the order of the Tribunal was not found to be unjustified, the
High Court refused to interfere therewith. The observations were made only in
the aforementioned context.
44. For the reasons
aforementioned, the impugned judgment cannot be sustained, which is set aside
accordingly. The appeal is allowed. However, in the facts and circumstances of
the case, there shall be no order as to costs.
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