THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION Nos. 18370,25179,25188 AND 25287 OF 2001, 7414 OF 2000 AND W.P.M.P.NOS.18072, 18711, 20663 AND 22506 OF 2006 IN W.P.NO.18370 OF 2001. DATED: 06-02-2008 W.P.NO.18370 OF 2001 A.P. Public Service Commission, represented by its Secretary. … Petitioner versus Ch.Rajendra Prasad and another … Respondents W.P.NO.25179 OF 2001 A.P. Public Service Commission, represented by its Secretary. … Petitioner versus M.Suryanarayana … Respondent W.P.NO.25188 OF 2001 A.P. Public Service Commission, represented by its Secretary. … Petitioner versus S.Krishna Dev and another … Respondents W.P.NO.25287 OF 2001 A.P. Public Service Commission, represented by its Secretary. … Petitioner versus Maganti Ramana Kumar … Respondent W.P.NO.7414 OF 2000 Kundur Ravinder Reddy … Petitioner versus 1.A.P. Public Service Commission, M.J.Road, Hyderabad,represented by its Secretary and 2 others … Respondents W.P.M.P.NOS.18072, 18711,20663 AND 22506 OF 2006 IN W.P.NO.18370 OF 2001. P.Venkat Kumar …Petitioner in WPMP 18072 of 2006 M.Goverdhan Rao … Petitioner in WPMP 18711 of 2006 K.Murali Mohan and 2 others …Petitioners in WPMP 20663 of 2006 K.Madhusudan Reddy … Petitioner in WPMP 22506 of 2006 …Petitioners versus 1.The Andhra Pradesh Public Service Commission and others …Respondents COMMON ORDER: (per the HON’BLE SRI JUSTICE K.C.BHANU) W.P. No. 18370 of 2001 is filed by the Andhra Pradesh Public Service Commission (for short ‘the Service Commission’), under Article 226 of the Constitution of India, challenging the review order, dated 10-07-2001, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, (for short ‘the Tribunal’) in Rev.M.A.No.264 of 2000 with M.A.34 of 2001 in O.A.No.7934 of 1997. 2. W.P. Nos. 25179, 25188 and 25287 of 2001 are filed by the Service Commission, under Article 226 of the Constitution of India, challenging the review order, dated 17-07-2001 passed by the Tribunal, in Rev.M.A.Nos.913 to 915 of 2001 in O.A.Nos.3115 and 3163 of 1998 and 1182 of 1994. 3. W.P. No. 7414 of 2000 is filed by the petitioner, under Article 226 of the Constitution of India, seeking certiorari, calling for the records pertaining to the order, dated 25-02-1999 in O.A.No.7762 of 1997 of the Tribunal and to quash the same as illegal, void and violative of Article 14 of the Constitution of India. 4. W.P.M.P.Nos.18072, 18711, 20663 and 22506 of 2006 are filed by the petitioners to implead them as respondents in W.P.No.18370 of 2001. 5. Brief facts, that are necessary for disposal of the present writ petitions, may be stated as follows: The Service Commission issued a notification vide Advt. No. 3 of 1992 to fill up 158 vacancies of Assistant Motor Vehicle Inspectors, which is a technical post. Screening test was held on 23-08.1992. Interviews were also conducted during September and October, 1993 by calling the candidates at the ratio of 1:3. Final results were announced on 17-02-1994. The Service Commission filled 151 posts and 7 S.C and S.T. posts were carried forward. The unsuccessful candidates filed O.As before the Tribunal. A Division Bench of the Tribunal dismissed all the Original Applications with an observation that the applicants therein, have not reached the zone of consideration. The Tribunal also rejected the plea of the applicants to review their case. Two years thereafter, the applicants filed review applications, whereunder a single member of the Tribunal allowed the applications by reviewing the order of a Division Bench of the Tribunal solely on the ground that the Service Commission could not produce the records. Learned single member of the Tribunal further directed the Service Commission to appoint the applicants as Assistant Motor Vehicle Inspectors. Thereafter, the Government and Transport Commissioner filed W.P.No.23523 of 2001 before this Court challenging the order of the Tribunal. This Court modified the order of the Tribunal directing the authority to consider the cases of the respondents. Aggrieved thereby, the Service Commission filed Civil Appeal Nos.5102-5107 of 2005 before the Supreme Court of India, whereunder the Supreme Court remanded the matter to this Court to consider the case afresh after perusing the original record produced by the Service Commission. 6. It is the contention of the writ petitioner in W.P.No.18370 of 2001 that though two S.C. candidates were selected, one in the open category and another in the S.C. quota who got 54 marks, but in the roaster fitment the S.C. candidate with 54 marks was shown in the open category vacancy and the S.C. candidate who was selected in the open competition was shown in the S.C. quota to maintain the seniority. 7. It is the contention of the writ petitioner in W.P.No.25179 of 2001 that the last selected BC-B candidate in zone V got 71 marks and the last BC-B candidate and other got 67 marks even as non local and therefore, merit has been taken into consideration. 8. The contention of the writ petitioner in W.P.No.25188 of 2001 is that the 1st respondent got 64 marks and the 2nd respondent got 61 marks, whereas the last selected candidate in BC-D in zone II secured 65 marks and others who were shown as non-local, got 65 marks. 9. It is the contention of the writ petitioner in W.P.No.25287 of 2001 that the last open category candidate in the zone got 72 marks, whereas the respondent got 62.5 marks. With the above contentions, counsel appearing for the writ petitioners prays to allow the writ petitions setting aside the review orders passed by the Tribunal. 10. On the other hand, learned counsel appearing for the 1st respondent in W.P.No.18370 of 2001 contended that the candidate in the open category who got 54 marks was selected, whereas the respondent got 62 marks and therefore, the 1st respondent has to be selected in the open category vacancy. 11.Learned counsel for the respondents in W.P.No.25188 of 2001 contended that the 1st respondent belongs to BC community and he secured 60 marks in the oral test conducted by the Service Commission, that the number of vacancies earmarked for BC-D category as per the roaster point is 11 in number in all the zones, that the number of vacancies filled up from BC-D category is only ‘8’ and therefore, the Service Commission has taken a different stand at different times. 12.Learned counsel for the respondent in W.P.No.25179 of 2001 contended that the respondent got 63 marks and therefore, he has to be appointed. 13.Learned counsel for the respondent in W.P.No.25287 of 2001 contended that the respondent got 62.5 marks and therefore, he has to be selected. 14. The only point that arises for consideration in these writ petitions, is that whether anyone of the unsuccessful candidates secured higher marks than that of those of the selected candidates in relation to the respective categories in recruitment? 15. The factual matrix is seriously disputed with regard to the securing marks by each of the respondents in the written test and oral interview conducted by the Service Commission. Admittedly, final results were published on 17-02-1994. The only ground on which, the learned single member of the Tribunal reviewed the order of a Division Bench of the Tribunal, is that the Service Commission could not produce the records relating to the recruitment of filling up of 158 vacancies of Assistant Motor Vehicle Inspectors vide Advt. No.3 of 1992. The explanation given by the Service Commission is that when some of the candidates filed writ petition, they produced the records before this Court and it seems that those records were misplaced and for that reason, they could not submit the records before the Tribunal when the cases came up for review. 16. The Service Commission produced the original record, which would reveal about securing of marks by each of the candidates participated in the selection process in each of the categories. There cannot be any dispute that merit should be the criteria for selection of posts notified. It is not in dispute that under Rule 22 of the Andhra Pradesh State Subordinate Service Rules, 1996, appointment shall be made as per the 100-point roaster. The said Rule also provides that any member belonging to S.C., S.T. or B.C. community secured more marks on par with candidates in open category, they can be selected in the open category. Consequent upon such selection, respective reserved quota has to be filled up in accordance with roaster point. 17. It is not in dispute that the 1st respondent in W.P.No.18370 of 2001 who belongs to open category, secured 62 marks. It is also not in dispute that the last selected candidate in zone VI under open category, secured 70 marks. It is also not in dispute that one S.C. candidate in zone VI in open competition was selected due to his merit with 69.5 marks. Consequent upon the selection of the candidate belonging to S.C. in the open competition, that vacancy has to be filled among the candidates belonging to S.C. One candidate belonging to S.C. who secured 54 marks in that category, was selected. To maintain the seniority of the candidate belonging to S.C. category, who came in open category, he was shown in a particular S.C. communal roaster. Consequently, that open category point was filled up with the S.C. candidate who was selected in the S.C. quota. Technically, the learned counsel for the 1st respondent may right in saying that the candidate belonging to S.C. community was shown in the open category, who secured less marks than the 1st respondent. But, in reality he should have shown in the communal roaster earmarked for S.C. community. If that is shown, the S.C. candidate, who was selected in the open category on merit, would be the junior to the candidate who was selected in the S.C. category. Therefore, to dispel the disparity, the S.C. candidate who was selected in the open category, was shown in the S.C. communal roaster, whereas a person who was selected in the S.C. category was shown in that open category point. This gives rise to a cause of action for the 1st respondent to file the writ petition. Therefore, the Service Commission was right in maintaining the seniority of a candidate, who secured higher marks and showing him in the S.C. communal 100- point roaster and the roaster point which was shown notionally to him in the open category select list was shown to the candidate selected in the S.C. community. Therefore, it cannot be said that the S.C. candidate who secured 54 marks was shown in the open category vacancy, secured less marks than the 1st respondent, especially when he did not come within the zone of consideration in open category. 18. We have perused the list of selected candidates. The 1st respondent who comes under open category got 62 marks, whereas the last candidate selected in the open category secured 69.5 marks. Therefore, the contention that he has to be selected on merit basis is only untenable and devoid of merit in view of the proper explanation given by the Service Commission for showing a candidate selected in the S.C. category as against open category in the 100-point communal roaster. 19. Coming to the case of the respondent in W.P.No.25179 of 2001, admittedly he belongs to BC-B community. There is no dispute that he secured only 63 marks. As seen from the selection list of BC-B candidates in zone V, the last candidate selected has secured 71 marks, whereas in the other zones, the last candidate selected in BC-B has secured 56 marks, even as a non-local. There is no dispute that 70% of the posts are reserved for local and remaining 30% are reserved for all the zones at the relevant point of time of recruitment. No candidate, who secured less than 63 marks was selected in BC-B category. Therefore, consideration of the respondent, who secured admittedly 63 marks does not arise. 20. Admittedly, the 1st respondent in W.P.No.25188 of 200, who belongs to BC-D community, secured 64 marks. Two persons were selected in this community, who secured 69 and 65 marks. In zone II, last selected candidate of BC-D community got 65 marks, whereas the last selected candidate under BC-D community in other zones as non-local got 65 marks. When the 1st respondent got 64 marks, question of selection to zone II or other zones, does not arise. Insofar as, the 2nd respondent is concerned, he belongs to open category. The last candidate selected in open category in zone II secured 72 marks, whereas the 2nd respondent got 62 marks. Therefore, in this view of the matter, question of his consideration who secured lesser marks than the candidate selected, does not arise. 21. Insofar as W.P.No.25287 of 2001 is concerned, admittedly the respondent herein secured 65.2 marks as seen from the merit list in zone V. The last candidate selected in open category secured 72 marks. Therefore, question of consideration of this respondent also does not arise. 22. Insofar as W.P.No.7414 of 2000 is concerned, subsequent to the filing of the O.A. the applicant amended prayer to declare para 7 of the Advt. No.3 of 1992 to the extent of marks obtained in the screening test should not be taken into account for the purpose of final selection to the post of Assistant Motor Vehicle Inspector, as contrary to Rule 3 (ii) of Andhra Pradesh Public Service Commission Procedure Rules. It was observed that Rule 3 (ii) of A.P.P.S.C. Procedure Rules, is no longer in operation at the relevant point of time. The APPSC introduced new procedure Rules with effect from 01-01-1988 and admittedly, the petitioner herein, who is a non-local did not challenge the process of examination and notification issued by the Service Commission. The petitioner has not demonstrated that any discrimination was shown to him so as to declare the condition No.7 as illegal and incorrect. Therefore, the application was dismissed. Therefore, absolutely there are no grounds to interfere with the order in O.A.No.7762 of 1997. Consequently, W.P.No.7414 of 2000 is liable to be dismissed. 23. In W.P.No.18370 of 2001, some of the petitioners filed W.P.M.P.Nos.18072, 20663 and 22506 of 2006 to implead them as respondents. Admittedly, none of the implead petitioners have come up within the zone of consideration for selection to the categories, in which they secured the marks. The marks secured by them are less than that of the last candidate selected in a particular category. When they have not come up within the zone of consideration, question of considering their cases does not arise. Therefore, the implead petitions are liable to be dismissed. Insofar as, implead petition in WPMP18711 of 2006 is concerned, the case was already dismissed by the Supreme Court. Therefore, question of considering his case does not arise. In any view of the matter, when he has not come up within the zone of consideration, his petition is liable to be dismissed. 24. The original applications filed by the respondents were dismissed by a Division Bench of the Tribunal, dated 07-12-1999. When an application was filed for ‘being mentioned’, that was also dismissed. But for the reasons best known to the Tribunal, the order of a Division Bench of the Tribunal, was reviewed by a learned single member of the Tribunal. In all propriety, the learned single member ought not to have entertained the review applications, especially when O.As. were disposed of by a Division Bench of the Tribunal. This fundamental aspect has been ignored by the learned single member of the Tribunal and passed the impugned order, solely on the ground that the original record has not been produced. We did not propose to add further anything the way in which, the learned single member of the Tribunal disposed of the review applications and set aside the order of a Division Bench of the Tribunal. Therefore, for the foregoing reasons, the writ petitions filed by the Service Commission are liable to be allowed. 25. Accordingly, W.P.Nos.18370, 25179, 25188 and 25287 of 2001, filed by the Service Commission are allowed setting aside the review orders, dated 10-07-2001 and 17-07-2001 passed by the learned single member of the Tribunal. W.P.No.7414 of 2000 and W.P.M.P.Nos.18072, 18711, 20663 and 22506 of 2006 in W.P.No.18370 of 2001 are dismissed. There shall be no order as to costs. --------------------------------- JUSTICE D.S.R.VARMA ------------------------------- JUSTICE K.C.BHANU DATED:06-02-2008. Hsd