THE HON’BLE THE ACTING CHIEF JUSTICE SRI GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO.24205 OF 2011 ORDER: (Per Ghulam Mohammed, Hon’ble the Acting Chief Justice) This writ petition has been preferred by an Advocates Welfare Association seeking a Writ of Mandamus for declaring the action of the respondents in not following the rule of reservation as prescribed under General Rule 22 of the Andhra Pradesh State and Subordinate Service Rules, while making recruitment to the post of District Judges by all the three methods prescribed under Rule 4(b) of the Andhra Pradesh State Judicial Rules 2007, as unconstitutional and discriminatory. It is also consequently prayed that, necessary directions be issued for following the rule of reservation as prescribed in General Rule 22 while making appointments to the category of District Judges. The petitioner association has been formed with an objective to secure faithful implementation of the constitutional guarantees for members belonging to Scheduled Castes and Scheduled Tribes, working in various departments and offices and particularly for those working in the Andhra Pradesh Judicial Service. The case of the petitioner is that, though the State Government has introduced rule of reservation even in matter of promotions and appointment by transfer, in so far as it relates to Scheduled Caste and Scheduled Tribe candidates, the similar benefit has not been extended in the Andhra Pradesh State Judicial Service and hence this writ petition has been instituted. 2. Sri P.V. Krishnaiah, learned counsel for the writ petitioner would submit that the Andhra Pradesh Judicial Service consists of posts of District Judges, Senior Civil Judges and Civil Judges and as per Rule 4(b), appointment to the category of District Judges shall be made by the following three methods namely, 1) By Direct Recruitment 2) By Transfer strictly on the basis of merit, through a limited departmental competitive examination and 3) By recruitment by transfer from among the Senior Civil Judges. The proviso added there under has only set apart 25% of the cadre strength to be filled up by means of direct recruitment and provided for another 25% by way of recruitment by transfer on the basis of merit through departmental competitive examination and the balance 50% shall be filled up by recruitment by transfer from amongst the category of Senior Civil Judges. However, the reservation in favour of Scheduled Castes and Scheduled Tribes is confined in its application only when the method of Direct Recruitment is adopted but not when the other two methods are followed. In view of the policy of the State to extend the rule of reservation in favour of Scheduled Castes and Scheduled Tribes, even in the matter of promotions, the same was not adopted or followed in the Andhra Pradesh State Judicial Service. This action of the respondents is therefore bad in law. 3. It is no doubt true that after Article 16 (4A) was brought forth by virtue of Constitution (85th Amendment) Act 2001, Government of Andhra Pradesh has taken a policy measure providing for rule of reservation in the matter of promotions in favour of Scheduled Castes and Scheduled Tribes and announced the same through their G.O.Ms.No.5 Social Welfare (SW.ROR.1) Department dated 14.02.2003. By virtue of this policy measure, rule of reservation is being implemented in favour of Scheduled Castes and Scheduled Tribes even in matters of promotion. However, the Governor of Andhra Pradesh in consultation with the High Court of Andhra Pradesh framed the special rules in respect of Andhra Pradesh State Judicial Service and notified the same through G.O.Ms.No.119 Law (LA&J SC.F) Department, dated 02.08.2008. Rule 4(b) of the Special Rules has provided for three distinct modes of recruitment to the post of District Judges. They are:- 1) Direct Recruitment 2) Recruitment by transfer on the basis of merit assessed through limited departmental competitive examination and 3) Recruitment by transfer from among the Senior Civil Judges. 4. Rule 7 provided for ‘Reservations’ and it reads as under: “Reservation: Rules 22 and 22-A of the Andhra Pradesh State and Subordinate Service Rules, 1996 insofar as they relate to Scheduled Castes, Scheduled Tribes, Backward Classes, Women and one percent for Physically Handicapped [Orthopaedically Handicapped (lower portion of the body)] persons shall apply to the appointments to be made by direct recruitment.” 5. Rule 25 which dealt with the applicability of the General Rules reads as under: “Applicability of General Rules: The A.P. State and Subordinate Service Rules, 1996, which are not inconsistent with these Rules and to the extent not covered by these Rules, shall apply to the Service.” 6. It is abundantly clear that, at the time when the special rules in respect of the Andhra Pradesh State Judicial Service are framed and notified, as of 02.08.2008, the policy of the State providing for reservation in favour of Scheduled Castes and Scheduled Tribes in the matter of promotions, announced by the State through G.O.Ms.No.5 Social Welfare (SW.ROR.1) Department, dated 14.02.2003, is available for guidance of the rule making authority. But, nonetheless, after bestowing an appropriate consideration and after noticing Rule 22 and Rule 22(A) of the Andhra Pradesh State and Subordinate Service Rules, the rule making authority consciously has provided for reservation to Scheduled Castes and Scheduled Tribes, amongst other classes, only in case of appointments made by direct recruitment. Therefore, Rule 7 of the special rules has confined the applicability of the rule of reservations only to the extent of direct recruitment and it has not been extended to cases of promotions. Rule 25 of the special rules has further made it clear that the Andhra Pradesh State and Subordinate Service Rules 1996, will have applicability so long as they are not inconsistent with these special rules and to the extent not covered by the special rules. In other words, if an area is already covered by the special rules or if there is an inconsistency between the Andhra Pradesh State and Subordinate Service Rules, 1996 and these special rules, it is these special rules that will prevail. Even otherwise, when an area has already been covered and provided for in the special rules, to that extent, they prevail over the Andhra Pradesh State and Subordinate Rules, 1996, which are regarded as General Rules. As was noticed supra, Special Rule 7 has specifically provided for the application of the principles of reservation in favour of Scheduled Castes and Scheduled Tribes, amongst other classes, only when the posts are filled in by the method of direct recruitment. The Andhra Pradesh Judicial Service comprises of posts of Civil Judges (Junior Civil Judges) Senior Civil Judges and District Judges. The posts of Junior Civil Judges and District Judges are filled in by the method of direct recruitment. Therefore, the reservation in favour of Scheduled Castes, Scheduled Tribes, Backward Classes and other Social reservations are provided for and taken care of while resorting to direct recruitment to these posts. Since the posts of Senior Civil Judges are filled in by way of promotion, the rule of reservation is not rendered applicable to them. Similarly, when recruitment to the cadre of District Judges otherwise than by direct recruitment is resorted to, the rule of reservation is not rendered applicable. In the absence of any valid challenge to the sustainability of Rule 7 of the special rules, the relief prayed for in this writ petition cannot be granted. 7. Learned counsel for the writ petitioner strenuously submits that 25% of posts of District Judges are set apart to be filled in by recruitment by transfer on the basis of merit assessed at a limited departmental competitive examination and this must be treated as equal to or the same as that of direct recruitment and atleast to this extent of 25% of recruitment by transfer (promotions), the principle of rule of reservation in favour of Scheduled Castes and Scheduled Tribes should be applied. 8. The contention canvassed in this regard is fallacious. Only to the extent of 25% of the posts in the cadre of District Judges are meant for direct recruitment. When direct recruitment is resorted to, the eligible advocates form the catchment area for such direct recruitment and employees in service are not eligible to be considered. Persons who do not satisfy the requirement specified under Article 233(2) of our Constitution cannot be recruited directly as District Judges. In juxtaposition thereto, the in-service Senior Civil Judges who have completed a minimum of five years form a resource pool, wherefrom they can be subjected to the process of limited departmental competitive examination to assess their merit. In other words, 25% of the vacancies in the cadre of District judges are thrown open only for meritorious Senior Civil Judges for out of turn of seniority promotion. The fact that they are subjected to a competitive examination does not render this source as another form of direct recruitment. These 25% of the vacancies in the cadre of District Judges are set-apart for Fast-track promotions of Senior Civil Judges. Hence, the contention canvassed by the learned counsel for the petitioner that this source must also be treated as an additional source of direct recruitment cannot be sustained and hence, it is rejected. 9. We find no merit in this writ petition and hence it is accordingly dismissed at the admission stage, but, however without costs. _____________________________ GHULAM MOHAMMED, ACJ ________________________________ NOOTY RAMAMOHANA RAO, J 05th November, 2011 sp THE HON’BLE THE ACTING CHIEF JUSTICE SRI GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO (Pre-delivered Judgment in) WRIT PETITION NO.16577 OF 2011 November, 2011 sp