HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND HONOURABLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.23184 of 2010 Date of Order:23.03.2011 Between: P.Ambedkar ..Petitioner and The State of Andhra Pradesh, rep. By its Principal Secretary to Revenue (Registration) and others ..Respondents The Court made the following Order: HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND HONOURABLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.23184 of 2010 ORDER : This writ petition is filed assailing the legality and validity of the judgment, dated 09.09.2010, passed by the Administrative Tribunal in dismissing O.A.No.10720 of 2009 filed questioning the proceedings, dated 29.07.2009, through which the respondent-Government has rejected the request of the applicant before the Tribunal for placing him at slot No.2 in the panel of District Registers for the panel year 2007-08. The facts of the case in brief, are stated as follows: - The writ petitioner (hereinafter referred to as ‘applicant’) belongs to Scheduled Caste category. He was directly recruited as Sub-Registrar Grade-II consequent to the selection by the Andhra Pradesh Public Service Commission. He joined the post on 20.01.1979. His services were regularized. He was further promoted as Sub-Registrar Grade I in the year 1988, Assistant District Registrar in the month of March 1995, District Registrar in the month of August 1995 and Deputy Inspector General of Registration and Stamps for the panel year 2007-08 vide G.O.Rt.No.1359, dated 28.06.2008. He was fully qualified and eligible to be promoted as Joint Inspector General of Registration and Stamps. It is further submitted that one N.Gnana Raju, District Registrar (SC Candidate) submitted his resignation letter on 22.02.2008 and requested to accept his resignation with effect from 04.06.2008. While the decision to accept N.Gnana Raju’s resignation was pending, the DPC for the above said panel year was scheduled on 12.06.2008. The Principal Secretary, Revenue Department on principle accepted the resignation of N.Gnana Raju on 12.06.2008. On the very same day i.e., on 12.06.2008 the above referred DPC met and considered all the eligible candidates including the petitioner. Though N.Gnana Raju’s claim need not be considered for the above reason, his claim was also wrongly considered by the DPC, which met on 12.06.2008. Not only N.Gnana Raju’s case was considered but he was also included in the panel and the same was approved by the Government vide G.O.Ms.No.760 Revenue Department, dated 20.06.2008. N.Gnana Raju was senior to the petitioner in the category of District Registrar. It is further submitted that the cadre strength of Deputy Inspector General of Registration and Stamps is 18 and by virtue of G.O.Ms.No.5, dated 14.02.2003, reservation in promotions is made applicable for the said cadre inasmuch as the policy of the Government is to provide reservation in promotions in such cadres which has five or more cadre strength. By virtue of the above roster was operated for the panel year 2007-08, N.Gnana Raju was shown against Sl.No.2 of the roster point and the petitioner herein was shown at Sl.No.7. It is further submitted that he is a member belonging to Scheduled Caste community and as such he is entitled to be shown against roster point No.2 in the District Registrars panel for the year 2007-08 for promotion to the post of Deputy Inspector General of Registration and Stamps. The cadre strength of Deputy Inspector General of Registration and Stamps is 19. In terms of rule of reservation provided in the matter of promotion, if 15% reservation is calculated, three vacancies will go in favour of SC candidates. The Screening Committee met on 12.06.2008 for selection of the names of the District Registrars for inclusion in the panel of District Registrars fit for promotion to the post of Deputy Inspector General of Registration and Stamps for the panel year 2007-08. The panel was approved vide G.O.Ms.No.760, dated 28.06.2008. It is further submitted that N.Gnana Raju, who was shown at Sl.No.2, has offered his resignation on 20.06.2008 and his resignation was accepted by the Government vide G.O.Ms.No.791, Revenue, dated 26.06.2008. The Government approved the panel vide G.O.Ms.No.760, dated 28.06.2008 for the panel year 2007-08 and promotions were ordered vide G.O.Ms.No.1359 Revenue, dated 28.06.2008, excluding the name of N.Gnana Raju. It is further submitted that N.Gnana Raju, who was shown against roster point No.2, was not appointed to Service under Rule 2(2) of the A.P.State and Subordinate Service Rules, 1996. The applicant made a representation requesting to show him against roster point No.2. The 1st respondent, by considering the representation issued memo, dated 20.11.2008, placing the applicant at roaster point No.2. Thereby, the 1st respondent directed the 2nd respondent to send necessary proposal to place the matter before the review DPC in order to consider the name of the applicant for appointment to the post of Deputy Inspector General of Registration and Stamps by including his name at Roster point No.2. It is further submitted that the Memo, dated 20.11.2008, was challenged by one G.Subbarayudu a direct recruited District Registrar, who was promoted as Deputy Inspector General of Registration and Stamps along with the applicant in O.A.No.2439 of 2009. The said G.Subbarayudu does not belong to scheduled caste. The Tribunal suspended the memo, dated 20.11.2008 vide orders, dated 11.02.2009. The Government has issued impugned memo, dated 29.07.2009, rejecting the request of the applicant for being shown at roster point No.2. It is the case of the respondents that the panel is prepared by the Departmental Promotion Committee as per the eligibility of the candidates obtaining at the time of holding of DPC and the DPC met on 12.06.2008. The re-consideration of panel or the change of placement in the panel already prepared by the DPC can be through a review Departmental Promotion Committee in the light of the guidelines issued in G.O.Ms.No.187 GAD, dated 25.04.1985. The guidelines does not provide for review of panel when a candidate in the panel could not be promoted for any reason to consider the case of other candidates included in the panel below to his name. Even if a roster point is not utilized, there is inadequacy of representation of any reserved candidate, the reserved candidate can only be considered at the next available point in the roster. It was further submitted that the representation of the applicant was thoroughly examined by the various departments of the Government and after obtaining their opinion, the impugned orders are passed. Further, Rule-6 of the Rules do not contemplate changing of placement in a panel which is already prepared by a duly constituted DPC. The name of the applicant was included in the panel at roster point No.7 and cannot be pushed up to roster point No.2. It is further submitted that the applicant has no right for inclusion at roster point No.2 on the ground that the person who was included at roster point No.2 has resigned from that post. Even assuming without admitting that the applicant is entitled to be adjusted against roster point No.2, he cannot claim seniority on that basis. The roster points are only for identifying classes but not for the purpose of seniority. Even though vacancy was shown at Sl.No.2 for SC candidate, the said candidate cannot claim seniority over the seniors, only on the ground of reservation in the matter of promotion. The Tribunal after considering the contentions advanced by both the counsel and on perusal of the material available on record, dismissed the O.A. Questioning the same, the present writ petition has been filed. Learned counsel for the petitioner contended that the Tribunal has committed a serious error in dismissing the O.A. without considering the case of the petitioner. He further contends that since Gnana Raju has resigned and his resignation was accepted on 26.06.2008 and the panel was prepared on 12.06.2008, but he was included in the list. It is further contended that mere inclusion in the panel does not give any right to be promoted as per rule 6(f) of the rules. He has drawn our attention to Rule 2(2) of the Rules, which deals with members appointed to a service. It is further contended that the Tribunal has committed a serious jurisdictional error since Gnana Raju has been resigned from the post on 26.06.2008 and slot No.2, which is occupied by Gnana Raju, by virtue of tendering resignation and accepting the same he has to be pushed above in the serial No.2 as he is the senior most SC Candidate. Learned counsel has drawn our attention to Rule 25 of the Rules, which contains power of review. It is further contended that the Government ought to have considered these review of the things and because of the language of Rule 25 the power of review is confined to meet the exigencies and if it is found that the mistake is committed for any other reason they can rectify the mistake and to redo the exercise to prevent the injustice caused to the petitioners. He also drawn our attention to Article 16(4) of the Constitution. Learned counsel drawn our attention to the judgment of the Hon’ble Supreme Court reported in P.G.I. of Medical Education and Research v. K.L.Narasimhan[1]. Learned counsel for the petitioner further contended that the other candidates, who is in the panel, is OC and hence, they cannot have any right or interest in the subject matter of the litigation. The dispute is among the SC candidates. By virtue of the resignation of Gnana Raju in the second slot, the petitioner who belongs to SC Community, ought to have pushed above. He contended that since it is meant for SC Women, if SC Women is not available, it should be given to SC Men. To that effect there is a GO. To rebut this contention, learned counsel for the respondent No.4 has drawn our attention to Rule 6 of the Rules. He vehemently contended that Rule 6 the expression appointing authority shall make appointment of candidate the least in which or appointed in their opinion. The panel was prepared and in the panel that panel has to be operated and by any stretch of imagination the arrangement which are made in the panel is only to identify the vacancies and in that panel the petitioner is shown at sl.No.7 though Gnana Raju has resigned it but none the less he cannot be pushed above. The authority has rightly considered it and rejected his claim and the Tribunal has also considered this matter while considering the scope of Rules 6 and 25. He further contended that Rule 25 has no application since there is no mistake of law and fact the review has to be undertaken only if there is a mistake of fact and law then only the review power can be exercised in the absence of any mistake of law and fact the review was not down accordingly and whatever they have prepared it will operate and further contended that the necessary parties have not been impleaded. Hence, the writ petition has to be dismissed. On the other hand learned Government Pleader also supports the same contention of learned counsel for respondent No.4. Since the controversy rests on the narrow compass, the point that arises for consideration is whether the Tribunal has committed any jurisdictional error in adhering to the principles? The basic fact is that the petitioner who belongs to SC Category though he is a men, the 2nd slot was meant for SC Women since the SC Women was not available and Gnana Raju since resigned and his resignation was accepted on 26.06.2008, the next candidate available in slot No.7 has to be pushed above, so as to occupy the position of slot No.2 in view of Rule 25 of the Rules and since Rule 2(f) of the Rules mere inclusion in the panel does not by itself confer any legally enforceable right and so there is no question of review of the DPC but it is only a review of panel. Accordingly, they have to undertake the exercise and since Gnana Rau has already been resigned and his resignation was accepted, he has to be pushed up. Rule 2(2) of the Rules reads as follows: “Appointed to a service: - A person is said to be appointed to a service “when, in accordance with these rules, except under Rule 10 and in accordance with the Special Rules or adhoc rules applicable to such service he discharges for the first time, the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof.” Rule 25 of the Rules reads as follows: Review: - The State Government may, of their own motion or otherwise, review any original order passed by them, promoting a member of a service or class, to a higher post or approving a panel of candidates for appointment or promotion to any category, class or service, prepared by them, or any order of revision passed by them under Rule 24, if it was passed under any mistake, whether of fact or of law, or in ignorance of any material fact or for any other sufficient reason; Provided that no order of review under this rule shall be passed unless the person affected or liely to be affected thereby is given an opportunity of making his representation against the proposed review. Article 16 (4) of the Constitution of India reads as follows: “Article 16: - Equality of opportunity in matters of employment:- (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” The Hon’ble Supreme Court in PGI of Medical Education and Research’s case (1 supra) held as follows: - Even in Dr.Pradeep Jain’s Case in paragraph 13, thi scourt pointed out thus; We may now proceed to consider what are the circumstances in which departure may justifiably be made from the principle of selection based on merit. Obviously, such departure can be justified only on equality-oriented grounds, for whatever be the principle of selection followed for making admissions to medical colleges, it must satisfy the test of equality. Now the concept of equality under the Constitution is a dynamic concept. It takes within its sweep every process of equalization and protective discrimination. Equality must not remain mere idle incantation but it must become a living reality for the large masses of people. In a hierarchical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to equality on the ground that every individual is entitled to equality of opportunity based purely on merit judged by the marks obtained by him. We cannot countenance such a suggestion, for to do so would make the equality clause sterile and perpetuate existing inequalities. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities. Where, therefore, there is inequality, in fact, legal equality always tends to accentuate it. What the famous poet William Blake said graphically is very true, namely, ‘One law for the Lion and the Ox is oppression’. Those who are unequal, in fact, cannot be treated by identical standards; that may be equality in law but it would certainly not be real equality. It is, therefore, necessary to take into account de facto inequalities which exist in the society and to take affirmative action by way of giving preference to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed, in order to bring about real equality. Such affirmative action though apparently discriminatory is calculated to produce equality on a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful sections so that each member of the community, whatever is his birth, occupation or society position may enjoy equal opportunity of using to the full his natural endowments of physique, of character and of intelligence.” In the above circumstances, the Supreme Court has clearly laid down the object and the ratio providing reservation to the weaker sections. In the circumstances, when once the Tribunal has committed error in appreciating the fact and the Tribunal has not considered these aspects, the petitioner should be placed at slot No.2 for Gnana Raju he has resigned from that post, the petitioner has to be pushed above and he should be placed at sl.no.2. In the circumstances, the Writ petition is allowed. The order passed by the Tribunal stands quashed. The petitioner also is entitled for consequential benefits. There shall be no order as to costs. ___________________________ GHULAM MOHAMMED, J ___________________ K.G. SHANKAR, J March 23, 2011 LMV [1] (1997) 6 SCC 283