IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY THIRD DAY OF JANUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 9678 of 2006 Between: K.Mohan Reddy, S/o.K.Rosi Reddy, aged about 30 years, R/o.Plot No.148, IICT Colony, Near Budda Nagar, Bodupal, Hyderabad – 500 039. ..... PETITIONER AND The Secretary, Andhra Pradesh Public Service Commission, Nampalle, Hyderabad. .....RESPONDENT Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a Writ of Mandamus or any other appropriate writ, order or direction declaring the orders of the Andhra Pradesh Administrative Tribunal in O.A.No.2579/1999, dt:20.08.2004 as contrary to law, while declaring the action of the respondent in selecting the 23 non local candidates out of 38 candidates in the ratio of 60.5% and also in selecting English Medium candidates for the Telugu Medium posts as illegal, arbitrary, contrary to the 6 Point Formula and consequently to set aside the entire selection in Zone VII made by the Respondent pursuant to the Advertisement No.4/1997 or alternatively direct the Respondent to give orders of appointment to him in the post of School Assistant (Mathematics) in Telugu medium by following the reservations to local candidates subject-wise instead of grouping all the subjects together and taking them as one category and grant such other relief or reliefs as this Hon’ble may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.V.V.L.N.Sarma Counsel for the Respondent :MR. M.VIJAYA KUMAR The Court made the following : ORDER (PER HON’BLE SRI JUSTICE B.SESHASAYANA REDDY) This Writ Petition is directed against the Order dated 20.08.2004 passed in O.A.No.2579 of 1999 on the file of the Andhra Pradesh Administrative Tribunal at Hyderabad, whereby and whereby the learned Tribunal dismissed the O.A. filed under Section 19 of the Administrative Tribunals Act, 1985. 2. Background facts in a nutshell leading to filing of this Writ Petition by the applicant in O.A.No.2579 of 1999 are: Andhra Pradesh Public Service Commission, Hyderabad-respondent issued Notification No.4/97 calling for applications for appointment by direct recruitment to the posts of School Assistants. Vacancies available have been indicated in Zone wise in the notification. The writ petitioner-applicant applied for the post of School Assistant in Zone-VII (Hyderabad). Total number of marks allotted for the written examination are 200 and for interview are 25 marks. Initially notification was issued for 44 posts of School Assistants in Mathematics and later vacancies came to be increased. The increased vacancies are 66 in Mathematics; 45 in Science and 63 in Social Studies. The Medium in which the vacancies sought to be filled- up is Telugu. The applicant passed B.Sc. with Mathematics. He possessed requisite qualification for being appointed as School Assistant in Mathematics in Zone VII. Preliminary examination was held on 30.11.1997. Written test was conducted on 19.07.1998 wherein the writ petitioner-applicant became qualified and called for interview on 05.03.1999. The respondent filled up only 38 posts of School Assistants in Mathematics. It is the contention of the writ petitioner-applicant that the respondent committed grave irregularities in selection of 38 posts of School Assistants in Mathematics and not followed the Rule of Reservation in respect of local candidates and that non-locals came to be recruited beyond their quota. According to the writ petitioner-applicant, out of 38 candidates, 23 candidates are non-locals and therefore, the action of the respondent in selecting 23 non-local candidates is arbitrary and contrary to six point formula and the notification No.4/97. The respondent selected the candidates who have no proficiency in Telugu for Telugu Medium subject. Hence, he filed the application before the Andhra Pradesh Administrative Tribunal, Hyderabad, seeking the following relief: “It is therefore prayed that this Hon’ble Court may be pleased to declare the action of respondent as arbitrary, illegal and contrary to the 6 point formula in selecting the 23 non local candidates out of 38 candidates in ratio of 60.5% for Non-locals and also in selecting English Medium candidates for the Telugu Medium posts in contrary to their own notification is violative of Articles 14, 16 & 21 of Constitution of India and further prayed to set aside the entire selection in Zone-VII made by the respondent in pursuance of the in advertisement No.4/1997 and pass such other order or orders as this Hon’ble Tribunal deems fit and proper.” 3. The respondent filed counter-affidavit resisting the application. R.Ramachandra, Secretary, A.P. Public Service Commission, Hyderabad, has sworn to the counter-affidavit filed in O.A. It is stated in the counter-affidavit that the Commission notified 44 vacancies in Zone- VII for the post of School Assistants in Mathematics subject vide Advt.No.4/97 and later 22 vacancies of Urdu medium have been requisitioned by the Unit Officer i.e. D.E.O., Hyderabad where total number of vacancies increased to 66 (44 Telugu Medium + 22 Urdu Medium) in Mathematics subject. The Commission could fill in 38 vacancies in Mathematics subject and the remaining 26 vacancies could not be filled in for want of BC, SC, ST and Urdu Medium candidates as those vacancies are meant for reserved groups. As per para.8 of the A.P. Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975, 70% of the posts to be filled by the direct recruitment at any time in any local cadre under the State Government comprising posts belonging to non-gazetted categories shall be reserved in favour of local candidates in relation to the local areas in respect of such cadre. Rules contemplate reservation to locals, but there is no reservation as such for non-locals. The vacancies beyond 70% can be filled in by candidates from any zone including candidates from the native zone as per merit. 70% quota for locals is calculated on the current vacancies available to the posts of School Assistant in the zone irrespective of the subject. There are 126 current vacancies, 70% of which works out to 88 vacancies and these vacancies were reserved for locals. The rest of the vacancies are open to be filled in by candidates from any zone as per merit. Non-locals quota of 30% will be calculated on the total number of current vacancies and the calculation of 30% will not be done separately for each subject. Selections were made as per the roster furnished by the Unit Officer on the basis of merit-cum-option of the candidates. A candidate of any subject may get selection as per his merit in a non-local vacancy. As a result, 23 candidates have been selected on merit in Mathematics subject as non-local candidates out of 38 vacancies. With the regard to the contention of the applicant that the posts which have been reserved only for Telugu Medium, the Tribunal by orders dated 10.09.1997 passed in O.A.No.5467 of 1997 suspended the clause relating to language proficiency and hence, selections were made as per the Orders of the Tribunal. 4. The writ petitioner-applicant filed reply affidavit. It is stated in the reply affidavit that several candidates who did not prosecute their studies in Telugu Medium and who do not even have proficiency in Telugu are appointed to the post of School Assistant in Mathematics contrary to the very Notification itself. The fact with regard to the suspension of language proficiency by the Tribunal in O.A.No.5467 of 1997 is not contradicted. For better understanding of the plea of the writ petitioner- applicant, we may refer paras.7 and 8 of the reply affidavit and they read as hereunder: “7. In reply to the allegations in paragraph No.12 of the Counter affidavit, I submit that I reliably understand that though this Hon’ble Tribunal was pleased to suspend the Clause relating to “language Proficiency” by Orders dated10.09.1997 in O.A.No.5467/97,ultimately, the said OA itself was dismissed as withdrawn by orders dt.9.6.2000. Therefore, the said Clause shall be deemed to be in operation. I am entitled for the benefit arising out of the said clause and persons who did not study in Telugu medium or at least have proficiency in Telugu Medium cannot be considered ignoring my superior claims. 8. In reply to the allegations in paragraph No.13 of the Counter Affidavit, I submit that the Respondent has not followed the rules or procedure in the true letter and spirit and the Six Point Formula has been observed more in breach. I am deprived of my opportunity in the matter of consideration and therefore there is a patent transgression of the fundamental rights guaranteed to me under Part III of the Constitution of India. Unless appropriate orders are passed, I will be put to grave prejudice and irreparable loss. It is therefore necessary in the interests of justice that this Hon’ble Tribunal may be pleased to allow the above OA as prayed for and grant such other relief or reliefs as this Hon’ble Tribunal may deem fit and proper in the circumstances of the case.” 5. The learned Tribunal, on considering the material brought on record and on hearing the counsel for the parties, came to the conclusion that clubbing of School Assistants in all subjects is permissible in view of the decision of the Supreme Court in Postgraduate Institute of Medical Education & Research etc. v. K.L.Narasimhan & anr. etc.[1] and thereby proceeded to dismiss the O.A., by order dated 20.08.2004. Hence, this Writ Petition by the applicant in O.A.No.2579 of 1999. 6. Rule Nisi came to be issued on 20.06.2006. The petitioner/applicant filed WPMP No.29322 of 2006 to expedite the hearing of the writ petition. The said WPMP came to be allowed on 09.11.2006. 7. Heard learned counsel appearing for the petitioner/applicant and learned Standing Counsel appearing for the respondent. 8. Learned counsel appearing for the petitioner/applicant submits that the action of the respondent in not filling all the 66 posts in Mathematics subject and filling 23 vacancies by non-local candidates is illegal, arbitrary and contrary to the 6 point formula. A further submission has been made that clubbing of School Assistants in all subjects for the purpose of application of rule of reservation to local candidates is not legal and proper. According to him, non-local candidates have been accommodated in excess of their quota and even all the vacancies notified have not been filled up and therefore, necessary direction is required to be given to the respondent to appoint the petitioner in the unfilled vacancies under local category. In support of his submissions, reliance has been placed on the following decisions: 1) Maharashtra SRTC v. Rajendra Bhimrao Mandve[2] 2) Secretary, AP Public Service Commission v. B.Swapna[3] 3) N.Obulesu & ors. v. The Govt. of A.P. rep. by its Secretary, Education Department, Hyderabad & Ors.[4] 9. In Maharashtra SRTC v. Rajenndra Bhimrao Mandve’s case, the Supreme Court held that reallocation of marks for interview in the middle, or after the commencement of selection process is impermissible. 10. In Secretary, A.P. Public Service Commission v. B.Swapna’s case, the Supreme Court held that once the process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks, can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights, the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation, it ought to be considered as prospective only. 11. In N.Obulesu & ors. v. The Govt. of A.P. rep. by its Secretary, Education Department, Hyderabad & Ors.’s case, a Division Bench of this Court considered the validity of G.O.Ms.No.49, Edn., dated 14.05.2002, whereby proviso to clause (a) of Rule 5 of the A.P. School Educational Subordinate Service Rules came to be omitted. The consequence of omission of proviso to clause (a) to Rule 5 of the A.P. School Educational Subordinate Service Rules is that the Secondary Grade Teachers who do not possess the required qualification became disentitled to get promotion to the existing posts of School Assistants. The validity of the said G.O. came to be upheld by the Division Bench of this Court in the above referred case. The learned counsel appearing for the petitioner by referring the said judgment contends that reservation for locals in subject-wise is to be considered. What is upheld by the Division Bench in the above referred case is re-designation of School Assistant posts into five categories in specialization. Clubbing of School Assistant posts in all subjects for the purpose of reservation to local category was not at all the subject matter in the above referred writ petitions. Therefore, the Division Bench judgment of this Court, on which heavy reliance has been placed by the learned counsel appearing for the petitioner, is of no help to further his contention that clubbing of School Assistant posts in all the subjects methodologies for the purpose of local categorization is not legal and proper. 12. Learned Standing Counsel appearing for the respondent submits that clubbing of School Assistant posts in all the subjects is not contrary to the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975, which is commonly called as Presidential Order. 13. Indisputably notification has been issued inviting applications for appointment by direct recruitment to the posts of School Assistant in Mathematics, Science and Social Studies. So far as Zone-VII is concerned, 44 vacancies have been notified in Mathematics subject in Telugu medium. The respondent has specifically asserted in the counter resisting the contention of the petitioner that a candidate of any subject may get selection as per his merit under a non-local category. As a result, 23 candidates have been selected on merit in Mathematics subject as non-local candidates out of 38 vacancies. The petitioner did not choose to implead the candidates who have been selected in excess of un-reserved quota. The circumstance under which more number of non- local candidates came to be selected in Mathematics subject has been detailed by the respondent in the counter. School Assistant posts in various subjects have been clubbed for the purpose of rule of reservation in respect of local candidates. More meritorious persons have opted School Assistant posts in mathematics subject and thereby their number exceeded in that particular subject. If, all the School Assistant posts in different subjects are clubbed, there is no excess quota of non-local candidates. Para 8 of the Presidential Order reads as under: “Para 8. Reservation in the matter of direct recruitment: (1) 80% of the posts to be filled by direct recruitment at any time – (a) in any local cadre under the State Government comprising posts belonging to the category of a Junior Assistant or a category equivalent to or lower than that of a Junior Assistant; and (b) in any cadre under a local authority comprising posts carrying a scale of pay, the minimum of which, or a fixed pay which, does not exceed the minimum of the scale of pay of a Junior Assistant, shall be reserved in favour of local candidates in relation to the local area in respect of such cadre. (c) (i) in any local cadre under the State Government comprising posts belonging to the categories of Teachers in the Andhra Pradesh School Education Subordinate Service and all other similar or equivalent categories of posts of teachers under any Department of the State Government; and (ii) in any cadre under a Local Authority or under any such other Management, as may be notified by the State Government from time to time carrying a Scale of Pay equal to that of posts in the Andhra Pradesh School Education Subordinate Service shall be reserved in favour of local candidates in relation to the local area in respect of such cadre. (2) 70% of the posts to be filled by the direct recruitment at any time; (a) in any local cadre under the State Government comprising post belonging to non-gazetted categories other than those referred to in item (a) or in item (c) of sub- para (1); (b) in any cadre under a local authority comprising posts carrying a scale of pay, the minimum of which, or a fixed pay which exceeds the minimum of the scale of pay of a Junior Assistant, but does not exceed Rs.480 per mensem (or any amount corresponding to it may be specified in this regard in the successive revision of pay scales granted by the State Government from time to time) shall be reserved in favour of local candidates in relation to the local area in respect of such cadre.” A plain reading of the above referred para indicates that 70 % of the posts to be filled by the direct recruitment shall be reserved in favour of local candidates in relation to the local area in respect of such cadre. The Tribunal considered para 8 of the Presidential Order and recorded a finding that as under: “ 16. Thus, it is seen that the post is taken as a category for the purpose of application of reservation to the local candidates as provided for in Para 8 of the Presidential Order. Thus, the action of the Service Commission in treating the School Assistant Posts as one category irrespective of the subject cannot be faulted. This being the case consequently all the posts of School Assistants notified have to be taken together and the Presidential Order is to be applied. This was what was done by the Service Commission. I do not see any valid ground to question the same. Evidently the applicant could not come up for selection by virtue of his merit and could not get selection and could not find place in the list of successful 38 candidates.” The Tribunal considered this aspect in right perspective and thereby proceeded to dismiss the O.A. Therefore, we do no see any valid ground to interfere with the findings of the Tribunal. 14. Accordingly, the Writ Petition is dismissed. No costs. ___________________ GHULAM MOHAMMED, J. ______________________ B.SESHASAYANA REDDY, J. Date:23rd January, 2009. Cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KURR} [1] 1997 (4) Vol.122 SLR = AIR 1997 S.C. 3687 = 1997 (6) SCC 283 [2] (2001) 10 Supreme Court Cases 51 [3] (2005) 4 Supreme Court Cases 154 [4] Common Order of Division Bench of this Court dated 09.10.2002 in WP No.17207 of 2002 and batch.