Full Judgment Text
REPORTABLE
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
J U D G M E N T
S.B. SINHA, J :
1. Leave granted.
2. Andhra 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.
2
3. The 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.
4. Both 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 category candidates.
5. Validity 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].
Indisputably, a similar question came up for consideration again in G. Raju
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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.
Public interest 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.”
6. Indisputably, 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 under:
“…The number 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
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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
examination.”
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:
“13. The 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
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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.
8
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.
9
10. Respondents 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.
The notification 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 premise:
(i) 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 – Commission.
(v) Reservation for women and physically handicapped persons being
an incident of horizontal reservation and not a vertical reservation,
the impugned judgment cannot be sustained.
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 differently.
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(v) A candidate only by appearing in an examination cannot waive his
fundamental or a statutory right.
(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 classless
society.
(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
this appeal.
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.
Indisputably, the 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:
“22-A. Women reservation in appointment:
Notwithstanding anything contained in these rules
or special rules or Adhoc Rules:
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(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
quota:...”
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 :
“…What 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 voce.
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 Main Examination.
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 held:
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.
Indisputably, the 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
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.
While shortlisting, 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:
“76. Proceeding 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 narrowed down.”
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).
The said observations, in our opinion, have no application to the fact
of the present case.
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 allotted lands.
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
rd
common interest. [See Advanced Law Lexicon, 3 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. Thomas (supra):
“43. Scheduled 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.”
32
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.
If category-wise 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 writ petition.
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 complexity.
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.
34
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:
“14…As a 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
determination…”
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 State.
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 Tribunal.”
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.
………………………….J.
[S.B. Sinha]
..…………………………J.
[Cyriac Joseph]
New Delhi;
April 08, 2009