HONOURABLE SRI JUSTICE GODA RAGHURAM & HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No.9437 OF 2010 DATE: 25.10.2010 Between: V. Chrysolite …… Petitioner And: The High Court of A.P., rep. by its Registrar (General), Hyderabad and another …..Respondents. HONOURABLE SRI JUSTICE GODA RAGHURAM & HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No.9437 OF 2010 JUDGMENT:(per Honourable Sri Justice Samudrala Govindarajulu) The 2nd respondent/Principal District Judge, Adilabad District issued notification in Dis.No.6184/2009/Admn Dated 04.12.2009 calling for applications to 17 posts of Junior Assistant for appointment in various courts in Adilabad District unit. In response to the said notification, the petitioner applied for the post to the 2nd respondent. Though written test for the said post was scheduled on 18.04.2010, the petitioner did not receive Hall ticket. It is alleged that when the petitioner went to office of the 2nd respondent and enquired about their Hall tickets, they were informed that Hall tickets were sent only to those persons who possessed graduate qualification by shortlisting their names. Therefore, the petitioner approached this Court with this writ petition seeking Mandamus declaring action of the 2nd respondent in prescribing decree qualification as against qualification of intermediate shown in the notification issued by the 2nd respondent, as illegal, arbitrary and violative of Article 21 of the Constitution of India. The Registrar (Recruitments), High Court of Andhra Pradesh, Hyderabad filed counter-affidavit on behalf of the 1st respondent. The 2nd respondent/Principal District Judge, Adilabad did not file any separate counter. In counter-affidavit filed on behalf of the 1st respondent, it is averred that for 17 posts of Junior Assistant, 9,366 applications were received from eligible candidates and that as per circular instructions of the High Court of Andhra Pradesh vide Roc.No.2318/96-C1(1) dated 01.07.1996, the Selection Committee has to screen all the applications from the list and to shortlist the same keeping in view of that not more than 25 candidates will be considered for each vacancy and that keeping the said circular instructions in mind, the 2nd respondent shortlisted the applications enhancing minimum qualification to degree from that of intermediate for the posts of Junior Assistant. It is further stated that the candidates were shortlisted by order dated 03.04.2010 and 3,800 candidates appeared for the examination which was held on 18.04.2010. The 1st respondent contends that the action by way of shortlisting is not unilateral or arbitrary or illegal or violative of the principles of natural justice. It is further contended for the respondents that as per Clause-XI of the general instructions mentioned in the notification dated 04.12.2009, it was specifically stated that mere applying will not give any right to any person to be called for either written examination or interview as applications of the candidates will be shortlisted as per guidelines issued by the High Court from time to time. According to the respondents, even after short listing, more than 3,800 candidates appeared for written examination for 17 posts at 1:225 ratio. It is further contended for the respondents that it is practically impossible to conduct written examination for more than 9,000 candidates who have applied and that there is no sufficient infrastructure to accommodate such huge number of candidates. On the other hand, it is stated by the petitioner in her affidavit that she had completed her B.Com degree. It is contended by the petitioner’s counsel that though the petitioner completed B.Com degree course, she did not mention the same in her application to the 2nd respondent as the required qualification as per the notification was only pass in intermediate examination. The petitioner filed Provisional Certificate dated 18.08.2005 of Kakatiya University showing that she passed Bachelor of Commerce in June/July, 2005. While admitting this writ petition, this Court passed interim order dated 27.04.2010 in W.P.M.P.No.12174 of 2010 to the effect that any appointments made to the posts of Junior Assistants in Adilabad District Judicial Unit pursuant to the notification dated 04.12.2009 shall be subject to the result of this writ petition and the 2nd respondent/appointing authority shall indicate in the orders of appointment to be issued that the appointments are subject to the result of this writ petition. Further, by order dated 30.06.2010, this Court issued another interim direction to the respondents to reserve one post in pursuance of the notification issued by the 2nd respondent in Dis. No.6184 of 2009/Admn Dated 04.12.2009 for recruitment of 17 posts of Junior Assistant in Adilabad District. In spite of the order dated 27.04.2010 directing the 2nd respondent/appointing authority to indicate in the orders of appointment to be issued that the appointments are subject to the result of this writ petition, no successful candidate who was appointed as Junior Assistant in pursuance of the notification dated 04.12.2009 sought to implead himself or herself as party-respondent to this writ petition. The petitioner’s counsel placed reliance on K.V.N.Bhupal V. State of Andhra Pradesh[1] and State of A.P. V. Y.Venkataramayya[2] of this Court in support of his ground of attack in this writ petition. In K.V.N.Bhupal (1 supra), this Court came to the conclusion that notification dated 15.04.2007 and corrigendum notification dated 28.07.2007 inviting applications for selection of District Judges (entry level) in the A.P. State Higher Judicial Service were erroneous and improper as there were no 23 vacancies as per notification or 13 vacancies as per corrigendum notification if the vacancies are reckoned as per the applicable rules; and ultimately upheld cancellation of selections made pursuant to the above notification and corrigendum notification by full Court of High Court. It was further held therein that prescription of minimum marks for interview mentioned in the notification, was not illegal and that the selection agency/High Court has right to evolve its own procedure for selection of candidates. It is contended by the petitioner’s counsel that the procedure for shortlisting and particularly taking higher qualification as the criterion for shortlisting was not notified in the notification dated 04.12.2009 by the 2nd respondent and that therefore the selection process starting from shortlisting of candidates is totally vitiated. In Y.Venkataramayya (2 supra), the question was whether selection of a candidate for appointment to the post of Agricultural Extension Officer (Grade-II) was legal as the selected candidate was not possessing the prescribed qualification as per rules by way of Diploma in Agricultural Polytechnic and instead the selected candidate possessed Diploma in Agriculture (Seed) Technology. Such selection was attempted to be supported on the ground that Agricultural University made recommendation stating that diploma in seed technology can be considered as equivalent to diploma in agriculture. Division Bench of this Court held therein that unless and until the service rules are amended clarifying to the above effect, selection of the candidate possessing diploma in Agriculture (Seed Technology) cannot be upheld as against requirement of possessing Diploma in Agricultural Technology as per rules. In that view of the matter, the petitioner’s counsel contended herein that in case shortlisting of candidates is to be undertaken on the basis of possessing qualification of graduation instead of prescribed qualification of pass in Intermediate course, then the respondents can do so only after amendment of Rule 8 read with item 4 of Appendix I of the 2003 rules. Having regard to respective contentions put forward herein, the point for anxious consideration is whether shortlisting of candidates by taking higher educational qualification of graduation as the criterion, is permissible in law and whether it is unfair or arbitrary or discriminatory. In the notification dated 04.12.2009 issued by the 2nd respondent for recruitment of 17 Junior Assistants by direct recruitment, para-I relating to educational qualifications reads as follows: “Must have passed intermediate education conducted by Andhra Pradesh State Board of Intermediate Examination or any equivalent qualification” This prescription of educational qualification in the notification issued by the 2nd respondent is in accordance with Rule-8(a) read with Annexure-I of the A.P. Judicial Ministerial Service Rules, 2003 (in short, the 2003 rules). Rule 8(a) reads as follows: “8. Qualification:- (a) No person shall be eligible for appointment to the categories specified in Column (1) of Annexure-1 to these rules by the method specified in Column (2) unless such person possessed the qualification specified in the corresponding entry in column (3) thereof”. Item No.4 relating to Junior Assistant in Annexure-I reads as follows: ANNEXURE-I Sl.No. Category and Method of Qualification Name of the appointment Post 1 2 3 4 “4. Junior Assistant (i) By direct Must have passed Recruitment intermediate exami- nation conducted by (ii) or by A.P. State Board promotion of Intermediate Examination or any equivalent examination” _________________________________________________________________ Thus, prescribed qualification for a candidate who seeks appointment as Junior Assistant in the State Judicial Ministerial Service is only pass in Intermediate examination conducted by the Andhra Pradesh State Board of Intermediate Education and nothing more. There is no dispute that the petitioner possesses the said educational qualification of pass in Intermediate examination conducted by the Andhra Pradesh State Board of Intermediate Education. The petitioner holds further qualification of B. Com Degree of Kakatiya University even prior to issue of the notification for direct recruitment by the 2nd respondent. But, the petitioner contends that she did not disclose the said higher qualification of possessing B.Com degree in her application as the prescribed qualification was only pass in Intermediate examination. Thus, the petitioner’s application for direct recruitment to the post of Junior Assistant in Adilabad District Unit of the Judiciary is a valid application for consideration for direct recruitment. The respondents 1 and 2 placed reliance on Circular instructions given by the High Court Administration in Roc.No.2318/96/CI(1) dated 01.07.1996 (in short, circular instructions) for shortlisting the candidates. In the counter filed by the 1st respondent, guideline No.7(e) of the circular instructions is quoted as empowering the 2nd respondent to shortlist the candidates in case there are more candidates than 25 times of the existing vacancies. Guideline 7(e) of the circular instructions reads as follows: “(e) The Selection Committee shall screen all the applications from Lists ‘A’ to ‘C’ and shortlist the same, keeping in view that not more than 25 candidates will be considered for each vacancy.” It is evident that both the respondents over-looked guideline No.7(a) of the same circular instructions relating to shortlisting of candidates for Ministerial service, which reads as follows: “7) (a) Ministerial Service: For the purpose of screening/short listing of the applications for the posts in Ministerial Services, the Committee shall take into consideration the marks secured in the qualifying examination and those who secured first class or 60% and above in the qualifying examination may be preferred to others, subject however to the rider that those having qualification in Type writing (Higher Grade) or Shorthand and those possessing Law Degree are not denied consideration” (stress is ours) As per guideline No.7(a) of the circular instructions, shortlisting in the case of Ministerial Service has to be undertaken by taking into consideration “the marks secured in the qualifying examination”. The said guideline 7(a) is in consonance with educational qualification prescribed by Rule 8(a) read with Item No.4 of Annexure-I of the 2003 Rules. Guideline 7(a) does not empower the appointing authority/recruiting authority who is the District Judge to take into consideration any higher qualification as the criterion for shortlisting the candidates contrary to prescribed qualification as per the 2003 rules. Though the circular instructions were of the year 1996 which were issued prior to the 2003 Rules coming into force, the said guideline 7(a) does not contravene the 2003 Rules. In the notification, the 2nd respondent stated as follows: “XI. Mere applying will not give any right to any person to be called for either written examination and interview as the application of the candidates will be short listed as per the guidelines issued by the High Court from time to time”. At the same time, the 2nd respondent did not notify that higher educational qualifications than prescribed educational qualification will be taken into consideration in shortlisting the candidates. Standing Counsel for the High Court placed reliance on Union of India V. S.Vinodh Kumar[3] and Andhra Pradesh Public Service Commission V. Baloji Badhavath[4] of the Supreme Court in support of his contention to uphold shortlisting of candidates by the 2nd respondent in this case. In S.Vinodh Kumar (3 supra), the Supreme Court upheld fixing of cut-off marks by the competent authority during the course of recruitment and further upheld that decision not to lower the cut-off marks in the interest of general merit, even if some of the vacancies remained unfilled, as such decision cannot be termed arbitrary. The railway administration fixed cut-off mark differently for the purpose of filling up vacancies in general category and reserved category. The Supreme Court upheld the same holding that the said fixing of cut-off mark is neither arbitrary nor offends the principles of equality enshrined under Article 14 of the Constitution of India. It was further observed therein that power of the employer to fix cut-off marks is neither denied nor disputed and that if the cut-off marks were fixed on rational basis, no exception can be taken thereof. The question of fixing cut-off mark in the recruitment process arises only after the applicants/candidates are given opportunity to participate in the selection process. Fixing of cut-off marks during the course of recruitment process after giving opportunity to the candidates to participate in the process, is totally different from preventing entry of the candidates to participate in the recruitment process by shortlisting the candidates at the threshold of recruitment process by denying even opportunity to the eligible candidates to participate in the recruitment process by way of attending written test or screening test. Thus, S.Vinodh kumar(3 supra) is no answer for the respondents to support shortlisting of eligible candidates by applying criterion of possessing higher educational qualifications than prescribed by the 2003 Rules. In Baloji Badhavath(4 supra), the Supreme Court upheld rules as well as action of the Andhra Pradesh Public Service Commission in conducting preliminary examination for all the qualified candidates before shortlisting the candidates for the purpose of attending written examination, particularly when several lakhs of candidates applied for recruitment to Group-I services in the State. Of course, the question therein was with regard to non-fixing of lesser minimum marks to be secured by candidates belonging to reserved categories when compared to candidates belonging to open category and its validity qua proviso to Article 335 of the Constitution. The Supreme Court noticed the following rule position with regard to shortlisting: “35. 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.” The Supreme Court further observed: “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.” With regard to conducting of preliminary examination which is not part of main examination, the Supreme Court observed: “29. 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.” Ultimately the Supreme Court upheld action of Andhra Pradesh Public Service Commission in conducting preliminary test before conducting main examination for shortlisting the candidates for main examination without even fixing minimum marks differently for open and reserved categories of candidates. It is contended by the Standing Counsel for the respondents that because 9366 applications were received from eligible candidates for recruitment to 17 posts of Junior Assistant, short listing of candidates had to be undertaken. Even when shortlisting was done taking possessing of degree/graduation as the criterion and that even then 3,800 candidates figured in the shortlist and the said number is not equivalent to 1:25 but is equivalent to 1:225. When the 2nd respondent was able to conduct written test for 3,800 candidates, it cannot be heard to say that it is practicably impossible to conduct written examination for 9,366 candidates on the ground of there being no sufficient infrastructure to accommodate such huge number of candidates in Adilabad district which is a backward district. But, if there is a will, there would be certainly a way. Instead of asking all 9,366 candidates to assemble at district head quarters of Adilabad for taking written examination, the same can be conducted at different centres in the district. In our opinion, conducting preliminary examination/screening test for all the eligible applicants would be a rational process for shortlisting candidates and in accordance with the verdict of the Supreme Court in Baloji Badhavath(4 supra). In this case, shortlisting the candidates on the basis of possessing of higher educational qualifications, in our considered opinion is contrary to rule 8(a) of 2003 Rules and also contrary to the notification dated 04.12.2009 issued by the 2nd respondent. No statutory Rule empowered the respondents to shortlist candidates on the basis of higher educational qualification. Further, the method adopted by the 2nd respondent for shortlisting the candidates is also contrary to guideline 7(a) of the circular instructions issued by the High Court Administration. Rule 8 read with Annexure-1 of the 2003 Rules, at serial No.4 enumerates the qualifications for appointment of a Junior Assistant inter alia by the method of direct recruitment, as Intermediate Education conducted by the Andhra Pradesh State Board of Intermediate Examination or equivalent examination. The circular instructions by the High Court dated 01-07-1996 in paragraph No. 7 (a) thereof specify that for the purpose of screening or shortlisting of applications for the posts in the Ministerial Services (including Junior Assistant) the committee shall take into consideration the marks secured in the qualifying examination and those who secure first class or 60% and above in the qualifying examination may be preferred to others, subject however to the rider that those having qualification in Type Writing (Higher Grade) or Shorthand and those possessing Law Degree are not denied consideration. Instruction 7(e) of these instructions, to the extent relevant and material for the purpose of this case, enjoins the selection committee to screen all applications and shortlist the same, ensuring that not more than 25 candidates will be considered for each vacancy. In terms, neither on text nor context is there any requirement postulated under the High Court instructions dated 01-07-1996, that for the purpose of short listing applicants (with a view to conform to the requirement that not more than 25 candidates should be considered for each vacancy), the selection committee may take a higher qualification like a graduation, into reckoning. On a conjoint application of the qualifications mandated by Rule 8 read with serial No.4 of Annexure-I of the 2003 Rules and the instructions in paragraph No. 7 (a) and (e) of the High Court circular dated 01-07-1996, the procedure followed in the impugned selection, of pruning the large number of applications received for the 17 vacancies, on the basis of graduation qualification, is impermissible. The provisions of the 2003 Rules do not permit such a process nor do the High Court instructions dated 01-07- 1996 enjoin such a procedure. In the event that even after following the instructions for applying preference in shortlisting as enjoining in paragraph 7(a) of the High Court instructions dated 01-07-1996, the selection committe is faced with a situation where the number of so shortlisted applicants is in excess of 25 for each vacancy, then and in such a case, it is legitimate to devise a rational process such as a screening test. It also requires to be noticed that since the notification did not indicate that a preference would be given (in the matter of shortlisting of candidates) to those possessing higher academic qualifications, the petitioner though had acquired graduation even by the date of application, did not specify in the application that she was a graduate and was thus denied an equal opportunity, in transgression of her rights under Articles 14 and 16 of the Constitution. On the aforesaid analysis, the selection procedure and recruitment process followed by the 2nd respondent for recruitment to the 17 posts of Junior Assistants is unsustainable. Consequently, the process of selection and recruitment of candidates for the 17 posts of Junior Assistants by the 2nd respondent pursuant to the notification dated 04-12-2009 bearing reference Dis.No. 6184/2009/Admn., is quashed. The writ petition is allowed as above. There shall however be no order as to costs. _____________________ GODA RAGHURAM,J ___________________________________ SAMUDRALA GOVINDARAJULU,J. Date:25.10.2010. Gk/ksh [1] 2010(1)ALT 521 (D.B) [2] 2010(3) ALT 17 (D.B) [3] (2007)8 Supreme Court Cases 100 [4] (2009)5 Supreme Court Cases 1