* THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN +WRIT PETITION Nos.31291 and 32657 of 2010 % .02.2011 # Yara Renuka, D/o.Y.Aylaiah And another ...Petitioners VERSUS $ Government of Andhra Pradesh, represented by its Chief Secretary, GAD (LA-J SC.F) Department, Hyderabad And another ...Respondents < GIST: > HEAD NOTE: ! Counsel for Petitioners: Sri G.Vidyasagar ^Counsel for Respondent: Smt.M.Bhaskara Lakshmi, Standing Counsel for the High Court of Andhra Pradesh ? CASES REFERRED: 1) (2008) 9 SCC 403 2) (2006) 1 SCC 75 : AIR 2006 SC 269 3) AIR 1952 SC 75 4) AIR 1955 SC 191 5) AIR 1958 SC 538 6) (2001) 7 SCC 708 : AIR 2001 SC 3616 7) (1973) 3 SCC 592 : AIR 1973 SC 811 8) (1983) 3 SCC 235 : AIR 1983 SC 420 9) (1999) 3 SCC 709 : AIR 1999 SC 1412 10) (1983) 1 SCC 305 : AIR 1983 SC 130 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.31291 and 32657 of 2010 February 25, 2011 Between: Yara Renuka, D/o.Y.Aylaiah … Petitioner And Government of Andhra Pradesh, represented by its Chief Secretary, GAD (LA-J SC.F) Department, Hyderabad And another … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.31291 and 32657 of 2010 COMMON ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) This common order shall dispose of both the writ petitions as a common issue would arise for consideration in the matters. At the outset, we shall notice the factual background from W.P.No.32191 of 2010 by referring to the parties as they are arrayed therein, as there is not much difference in the factual matrix. The petitioner is a practicing Advocate in the City Civil Court and other Courts in the twin cities of Hyderabad and Secunderabad. She filed the writ petition aggrieved by rejection of her application, for the post of District and Sessions Judges, on the ground that she has not signed the application prescribed for the post. Further, the case of the petitioner is that she fulfils all the requisite qualifications, and eligibility criteria, as per the Andhra Pradesh State Judicial Service Rules, 2007 (the Rules) for being appointed as a District Judge by direct recruitment. The High Court of Andhra Pradesh – the second respondent herein; issued publication dated 10.8.2010 notifying 18 vacancies for the year 2010 in the category of District and Sessions Judges (Entry Level). Thereafter, the first respondent advertised in Eenadu on 18.8.2010 and The Hindu on 19.8.2010 inviting applications for the post of District Judge. The last date for submission of applications was 03.9.2010. The petitioner submitted her application before the due date. The second respondent published the list of District-wise eligible candidates for the posts advertised. The eligible candidates in Hyderabad District are from Serial Nos.686 to 1345. The petitioner’s name was not found in the list. She, therefore, made an application on 03.12.2010 to the second respondent in this regard. In response thereto, the second respondent issued the impugned communication dated 06.12.2010. The petitioner would contend that the list of candidates displayed on 30.11.2010 shows the acceptance of candidates subject to production of certain documents like certificate of Tahsildar/Bar Council, Service Certificate, Demand Draft in favour of the Registrar (Recruitment), production of practice certificate, and clarification with regard to the discrepancy in the name appearing in the application and the certificates. In all these cases, the candidates were directed to produce necessary certificates within the stipulated time. The petitioner would contend that the same benefit is, however, denied to her in violation of her rights under Articles 14 and 16 of the Constitution of India. The second respondent filed counter-affidavit as well as additional counter-affidavit. We may notice, to the extent relevant, the case of the second respondent from their additional counter-affidavit. After expiry of the last date stipulated for receipt of applications, the Secretary to the Government, Legislative Affairs and Justice, Law Department forwarded the applications vide letter dated 24.9.2010. In all 2,722 applications, excluding 12 applications in duplicate, were received for the post of District Judge under direct recruitment. On scrutiny of the applications, it was found that 2,358 applications were in order. 143 applications were received from the candidates appearing under the category of ‘by transfer’ excluding 3 applications which were submitted as advance copies. On scrutiny, it was found that 131 applications were in order and 12 applications were not in order. In the meeting on 23.11.2010, the committee of the Hon’ble Judges constituted for recruitment to the category of District and Sessions Judges (Entry Level) considered that 364 applications were not in order. Here the averments in paragraph 8 of the counter-affidavit are relevant. For ready reference, they are extracted as below. The Hon’ble Committee in its meeting held on 23.11.2010 considered the above said 364 applications which are not in order with regard to direct recruitment. 23 applications which are found to be unsigned, the Hon’ble Committee resolved to reject them. The Hon’ble Committee also rejected 10 applications which were received after the last date i.e., 03.9.2010, two applications submitted by physically handicapped persons as D.D. was not enclosed and 21 applications as the applicants have completed 45/48 years as on 01.8.2010. 9 applications have been rejected in view of provision of Article 233(2) of the Constitution of India as the applicants are in A.P. State Judicial Service on the date of their application. 23 applications have been rejected since the applicants have less than 7 years of practice at the bar. However, the Hon’ble Committee has resolved to accept the remaining applications subject to the condition that the applicants should produce the necessary certificates/information within fifteen days from the date of publication of list of eligible applicants for the written examination in the High Court’s Web Site, failing which their applications shall stand rejected. In respect of these applications, the deficiencies are that in some cases it is proof of date of birth, practice certificate up to date, caste certificate issued by the concerned Mandal Revenue Officer and clarification with regard to discrepancy in the name in the Secondary School Certificate with the name in the application etc. The second respondent further states that pursuant to the Minutes of the Hon’ble Committee dated 23.11.2010, the Registry called for information/documents on 03.12.2010 from the applicants who have not furnished the same while submitting applications. The information/documents received from the applicants were submitted to the Hon’ble Committee who considered the same on 22.12.2010, and resolved to accept the information pursuant to granting two weeks’ time by the High Court. Some applications were accepted and some were rejected wherever the required information was not furnished. The hall- tickets were prepared and dispatched to the respective unit heads. The written examination, which was scheduled on 23.1.2011, has been rescheduled to 06.3.2011 in view of the prevailing disturbing state of affairs. The counsel for the petitioners would submit that the rejection of the petitioners’ applications on the ground that they have not signed the applications is unreasonable and arbitrary. In the case of other defective applications, sufficient time was granted to cure the defects and the same benefit was denied to the petitioners. They would contend that the petitioners were discriminated and their fundamental right is violated. They relied on T.Jayakumar v A.[1], and Uday Shankar Triyar v Ram Kaleswar Prasad Singh[2]. Per contra, The Standing Counsel for the High Court would submit that, as per the advertisement, any application which is incomplete is liable to be rejected summarily; an application made by a candidate to the post of District Judge without signature cannot be treated as a complete application and, therefore, the rejection of the applications is justified. She would further urge that, wherever the defect in an application was found to be minor in nature, the High Court had decided to give 15 days time for the candidates to rectify such defects by furnishing information or filing necessary documents, and that category of applications is certainly different from the category of applications which were not at all signed. The only point that arises for consideration is whether the petitioners were denied the benefit of rectifying the defect which was afforded to other categories of applicants who sent the applications either without enclosing the documents or furnishing full information. The principle of equality postulates that what is equal is to be treated equally and what is different is to be treated differently. It does not exclude different treatment of persons and inanimate things based on differences of factual circumstances. Any treatment of unequals is itself anti-equality. “Equality before law and equal protection of laws” impliedly allows classification of men and material. The doctrine of classification – adjutant principle of equality – is justified only when the twin tests of classification is satisfied. The rationality test requires intelligible differentia among the men and material so classified, and the nexus test demands that such differentia must have relation to the object sought to be achieved compelling classification. If these indicia are broadly satisfied, the breach of equality is not countenanced. The authorities on this aspect are galore and there is no necessity to extract from them (State of West Bengal v Anwar Ali Sarkar[3], Bhudhan Choudhry v State of Bihar[4] a n d Ram Krishna Dalmia v Justie S.R. Tendolkar[5]). I n State of A.P. v Nallamilli Rami Reddy[6], the quintessence of the doctrine of classification was reiterated and reconfirmed as follows. What Article 14 of the Constitution prohibits is "class legislation" and not "classification for purpose of legislation". If the legislature reasonably classifies persons for legislative purposes so as to bring them under a well defined class, it is not open to challenge on the ground of denial of equal treatment that the law does not apply to other persons. The test of permissible classification is two-fold: (i) that the classification must be founded on intelligible differentia which distinguishes persons grouped together from others who are left out of the group, and (ii) that differentia must have a rational connection to the object sought to be achieved. Article 14 does not insist upon classification, which is scientifically perfect or logically complete. A classification would be justified unless it is patently arbitrary. If there is equality and uniformity in each group, the law will not become discriminatory, though due to some fortuitous circumstances arising out of peculiar situation some included in a class get an advantage over others so long as they are not singled out for special treatment. In substance, the differentia required is that it must be real and substantial, bearing some just and reasonable relation to the object of the legislation. (emphasis supplied) The dynamics of the equality clause in Article 14 of the Constitution is reflected in Article 16(1). It is only an instance of the application of the general rule of equality laid down in Article 14. Therefore though Article 16 does not debar reasonable classification of the employees and persons in the matter of appointment to public posts and promotions, still the classification of persons for the purpose of public employment has to satisfy the twin tests of classification. Any classification of persons has to be made with reference to the objective to be achieved (Union of India v S.B.Kohli[7] and D.D.Joshi v Union of India[8]). It is also axiomatic that equality of opportunity in employment means equality within a class and not between different classes (Union of India v Havildar[9]). These principles are relevant while considering the issue in these cases as to whether equality is denied to the petitioners. All the eligible candidates who applied for the post of District Judge (direct recruitment) form one class subject, however, to their eligibility for being considered against the posts earmarked/reserved for special groups. For the purpose of accepting the applications, with reference to the eligibility criteria as per the Rules and as per the advertisement of the Government, the High Court rightly classified and segregated applications into those which are in order (we may class them as compliant category) and those which are not in order (we may call them, non-compliant category). Leaving 2,358 which are compliant, there remained 364 applications which are the non-compliant category. As per the note mentioned in the advertisement, three types of applications shall have to be summarily rejected. They are: (i) incomplete applications; (ii) applications without testimonials/ certificates in proof of the particulars given; and (iii) applications received after the last date. There is no dispute that the non-compliant category applications fall in one of these types of summarily rejectable applications and form one class. The second respondent, however, again classified these non- compliant category applications into four types, namely, (i) deficient for want of proof of date of birth; (ii) deficient for want of practice certificate upto date; (iii) deficient for want of caste certificate issued by the concerned Tahsildar; and (iv) deficient by reason of discrepancy in the name mentioned in the application and other certificates. The second respondent condoned the lapse for this category of applications and – there is no dispute – granted 15 days time to the applicants. When the applications were placed before the Hon’ble Committee, it was resolved to reject 23 applications for want of signature; 10 applications received after the last date; two applications of physically challenged candidates for want of necessary demand draft; 21 applications where the applicants completed 45/48 years of age as on 01.8.2010; 9 applications as not satisfying the conditions in Article 233(2) of the Constitution; 23 applications as the candidates did not have 7 years of practice. Thus 88 applications were rejected for some reason or the other. In so far as type (ii) summarily rejectable applications are concerned, the second respondent allowed 15 days time for rectifying the defects. Whether the Rules and advertisement permits such condonation of lapses is a different question. The question, however, is that when applications, not accompanied by the supportive documents were accepted after allowing the candidates to cure the defects, there is no reason why the same benefit cannot be extended to the petitioners whose only defect was not signing the applications. A perusal of the advertisement would show that all applications, without testimonials/certificates in proof of the particulars given in the application, will have to be summarily rejected. This category of applications was meted with special treatment without any rational basis. If the object behind such a move was to condone minor lapses, and to allow the candidates to cure the defect, the category of applications which were not signed is no different. It is now well settled that when breach of equality is alleged, the initial burden is on the petitioners (D.S.Nakara v Union of India[10]). When once the initial burden is discharged, the onus would be on the decision-maker to justify that the classification satisfies the twin tests. We are afraid the second respondent has not justified the classification of the non-compliant category of applications into different categories for the purpose of allowing the candidates to cure the defects. Therefore the rejection of the applications of the petitioners is unsustainable. The classification which is patently arbitrary has to suffer invalidation by the Court of judicial review. A perusal of the Article 233(2) of the Constitution, Rule 5 of the Rules and the advertisement would show that a candidate must, at the threshold, satisfy that he has the essential requisite qualifications for being considered to the post of District Judge. The 7 years standing at the Bar, the maximum age limit and, if one is claiming reservation, proof of belonging to such community are essential. As a matter of general proposition, the qualifications for a post or office can be those which lay down essential eligibility criteria and those which are merely ancillary or subsidiary to the main qualifications. The requirements of Article 233(2) of the Constitution and Rule 5 of the Rules are certainly essential conditions. That is the reason why, in the advertisement, a note was appended stating that the applications, not accompanied by the testimonials, shall be summarily rejected. The second respondent appears to have ignored this and allowed 15 days time to the candidates to rectify such defects. Therefore, allowing time to those candidates who could not enclose necessary certificates to their applications in proof of their essential qualifications and denying the benefit to the petitioners, who by inadvertence, failed to sign the applications is palpably arbitrary. We are, therefore, of the considered opinion that the petitioners should be allowed some time to sign their applications, and they shall be allowed to appear in the written examination for the post of District Judge (Entry Level). In the result, for the above reasons, these writ petitions are allowed. The second respondent is directed to permit the petitioner in W.P.No.31291 of 2010 and the petitioner in W.P.No.32657 of 2010 to rectify the defect and sign their applications. Thereafter they shall be issued hall-tickets to enable them to appear for the written examination for the post of District Judge (Entry Level) in the Andhra Pradesh State Judicial Service to be made by direct recruitment. There shall be no order as to costs. _______________ (V.V.S.RAO, J) ______________________________ (RAMESH RANGANATHAN, J) February , 2011 Note: L.R. Copy be marked. (B/o) YS [1] (2008) 9 SCC 403 [2] (2006) 1 SCC 75 : AIR 2006 SC 269 [3] AIR 1952 SC 75 [4] AIR 1955 SC 191 [5] AIR 1958 SC 538 [6] (2001) 7 SCC 708 : AIR 2001 SC 3616 [7] (1973) 3 SCC 592 : AIR 1973 SC 811 [8] (1983) 3 SCC 235 : AIR 1983 SC 420 [9] (1999) 3 SCC 709 : AIR 1999 SC 1412 [10] (1983) 1 SCC 305 : AIR 1983 SC 130