S G S *THE HON'BLE MR JUSTICE GHULAM MOHAMMED AND THE HONOURABLE SRI JUSTICE C.V.RAMULU +WRIT PETITION NO.16029 of 2008 %Dated 23-07-2008 #Between: .. Petitioner And …..Respondents !Counsel for the Petitioners : Mr. S. Ramchandra Rao Senior counsel for the petitioner ^Counsel for the Respondents : Advocate General <GIST >HEAD NOTE: ? 1985 (2) APLJ 380 1992 Suppl. (3) SCC 217 1997(9) scc 633 1997 (9) scc 199 1979(3)scc 165 1997(4)scc 426 2006(6) scc 395 1986 (Suppl ) SCC 285 1995(3) SCC 486 1993(2) SCC 310 1994(6) SCC 293 AIR 1997 SC 2418 AIR 1986 SC 1043 2006(10) SCC 261. IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY THIRD DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 16029 of 2008 Between: 1 Baloji Badhavath S/o. Patchya C/o. Harilal Guduru Post, Miryalaguda Mandal, Nalgoda District. H.T.No.11834132 2 M. Maheswar Naik S/o. M. Shanker Naik Room No.6, A.P. Study Circle, DR. B.R. Ambedkar Bhavan, Lower tank Bund, Hyderabad. H.T.No.11856167 3 S. Ranapratap S/o. S.R. Venkata Ramana Nagireddipalli, Kadiri, Ananthapur District. H.T.No.11849323 4 Banavath Ramudu Naik S/o. Thirupal Naik Japla Thanda G. Yarraguda Post, Thuggali Mandal, Kunrool District. H.T.No.11862534 5 K. Chalapathy S/o. K. Dharma Naik K. Gundumala Post, Madakasira Mandal, Anantapuram District. H.T.No.11804001 6 M. China Sailu S/o. M. Ramulu H.No.4-46/4/E/14, Sainagar Colony, Near BHEL Depot, Ramachandra Puram, Hyderabad. H.T.No.11831741 7 G. Prasantha Vijaya Kumar S/o. G. Dhanaraj Chintaparthy, Vayalpadu, Chittoor District. H.T.No.11840026 8 D. Vijayalakshmi D/o. D. Jayaraju Hastinapuram, Jandrapet, Chirala, Prakasam District. H.T.No.11860340 9 K. Narasimhulu S/o. K. Venkoba Aragidda Post via Gadwal (taluk), Mahaboobnagar District. H.T.No.11304719 10 M.L.N.Rao S/o. M. Guravaiah Plot No.503, Sri Sai Towers, Gandhinagar, Musheerabad, Hyderabad. H.T.NO.11608817 11 Ch. Jayalakshmi D/o. Ch. Narayanarao D-10, SMR Niranjanwilla Jupitar Colony-2, Sikh Road, Secunderabad. H.T.No.11856629 12 J. Padmavathi D/o. Sadanandarao Flat No.N-292, 2nd Floor, R.B.I. Staff Quarters, Begumpet, Secunderabad. H.T.No.11820875 13 D. Suja Vijayalakshmi D/o. Laxmaiah H.No.4-12-900, Dwearakamai Nagar, Vanastalipuram, Hyderabad. H.T.No.11803461 14 A. Shiva Kumar S/o. A. Laxminarayana Flat No.202, Plot No.33, D.No.1-9-485/6/3/1, Murgan Nilayam Lalitha Nilayam, Hyderabad-44. H.T.No.11840422 15 T. Rama Mohan Naidu S/o. Ramanjaneyulu Nagisetti Palli (V), Kolimigund, Kurnool. H.T.No.11303504 16 N. Venugopal Reddy S/o. Narasimhareddy Mukundapuram (V), Nidamanoor, Nalgodna District. H.T.No.11838244 17 M. Susmitha D/o. M.R. Prasad Reddy H.No.401, Dheeraj Gardens, Magunta Lay Out, Nellore. H.T.No.10902234 18 D. Soujanya D/o. D. Balarama Krishna H.NO.16-9-749/49, Ajantha Nagar, Racecourse Road, Old Malakpet, Hyderabad. H.T.No.11838648 19 T. Venkata Ramadasu S/o. T.K. Ramaiah Flat - 104, Ganapathi Complex, Navodaya Colony, Yellareddy Guda, Hyderabad. H.T.No.11850606 20 Y. Harikrishna S/o. Sivaprasad H.No.2-2-1137/3/c, Nallakunta, Hyderabad. H.T.No.11851976 21 M. Vallidevi D/o. M. Narasimhamoorthy Racherla, Pentapadu Mandal, West Godavari District. H.T.NO.11814431 22 K. Karuna D/o. K. Narasimha Reddy H.No.34-125/A, Sainikpuri, Secunderabad. H.T.No.11827495 23 M. Navaneetha D/o. Chandra Reddy Chevella, Ranga Reddy District. H.T.No.11807464 24 V. Mamatha D/o. V. Chenchu Reddy Plot No.17, Shivapuri Colony, L.B.Nagar, Hyderabad. H.T.No.11804766 25 V. Rajeswari D/o. V. Chunchu Reddy Plot No.17, shivapuri colony, L.B.Nagar, Hyderabad. H.T.No.11805336 26 B.V. Vikrama Simha S/o. B.V. Nagamuni H.No.19-1-395, Old town, Vinayaka Nagar, Anantapur. H.T.No.11207249 27 S.V.Venu Gopal S/o. Ramakrishnaiah Near Old Police Station, Vidavalur Mandal, Nellore District. H.T.No.10901231 28 Rama Mada D/o. Raji Reddy C/o. Chandra Mouli, H.No.5-19, Indiranagar Colony, Boddupal, Ranga Reddy District. H.T.No.11801513 29 B. Padma D/o. Bicha H.No.1-6-91, Plot No.8, Hyderabad. H.T.No.11820828 30 Bansilal Maldthi S/o. Bheekya C/o. Bicha, H.No.1-6-91, Plot No.8, Habsiguda, Hyderabad. H.T.No.11830845 31 R. Rajesh Neheta S/o. Nagaiah H.No.1-1-421/4, Street No.1, Gandhinagar, Hyderabad. H.T.No.11843845 ..... PETITIONER(S) AND 1 The Government of Andhra Pradesh, Rep. by its Prl. Secretary, GAD (Ser.A) Secretariat, Saifabad, Hyderabad. 2 The Andrha Pradesh Public Service Commission, Prathiba Bhavan, M.J. Road, Hyderabad-500001, rep. by its Secretary. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ, order or direction more particularly one in the nature of writ of mandamus declaring Paragraph 2 of the Annexure II to G.O.Ms.No.570, dated 31.12.1997 and Para 1 of Annexure-II of Notification No. 31 of 2007 dated 27.12.2007 to the extent "The number of candidates to be admitted to the written examination (Conventional Type) would be 50 (Fifty) times to the total number of vacancies available at material time irrespective of communities." as illegal, unjust, arbitrary, violative of Articles 14, 16(4),21 and 335 of the Constitution of India and contrary to the Regulations issued under Article 320 of the Constitution of India with particular reference to Regulation 14-A(i) and also contrary to Rule-4 of the APPSC Rules and consequentially set aside the impugned clauses both in paragraph 2 of the Annexure II appended to G.O.Ms.No.570, dated 31.12.1997 and Paragraph I of Annexure II of the Notification No.31 of 2007 dated 27.12.2007 to the extent " The number of candidates to be admitted to the written examination (Conventional Type) would be 50 (Fifty) times to the total number of vacancies available at material time irrespective of communities by setting aside the order of the Hon'ble Andhra Pradesh Adminstrative Tribunal passed in O.A.No.4716 of 2008, dt. 04.07.2008 and pass such other order or orders Counsel for the Petitioner:MR.K.R.PRABHAKAR Counsel for the Respondent No.: MR.M.VIJAYAKUMAR The Court made the following : sgs THE HON’BLE Mr. JUSTICE GHULAM MOHAMMED AND THE HON’BLE Mr. JUSTICE C.V. RAMULU W.P. NO.16029 of 2008 ORDER : ( Per HON’BLE Mr. JUSTICE GHULAM MOHAMMED ) This Writ Petition has been filed challenging the paragraph 2 of the Annexure II appended to G.O.Ms.No.570, dated 31-12-1997, and para 1 of Annexure-II of Notification NO.31 of 2007 dated 27-12-2007 to the extent that “ the Number of candidates to be admitted to the written examination (Conventional Type ) would be 50 time to the total number of vacancies available at the material time irrespective of communities”, as illegal, unjust, and violative of Articles 14, 16(4), 21 and 335 of the Constitution of India with particular reference to Regulation 14-A and also contrary to Rule 4 of the APPSC Rules, and to set aside the order of the Andhra Pradesh Administrative Tribunal, Hyderabad in O.A.No.4716 of 2008 dated 4-7-2008. The 2nd respondent-Andhra Pradesh Public Service Commission, Hyderabad ( for short “APPSC”), vide notification No. 31 of 2007 dated 27-12-2007 notified 196 vacancies in various cadres of Group-I services and invited applications from the eligible candidates to participate in the selection process, in pursuance whereof, the petitioners herein, along with other aspirants numbering 1,68,000 have applied for the posts in Group-I Services. The APPSC conducted the screening test on 20-4-2008, and published the result of the screening test on 26-5-2008 selecting 9,800 candidates to the Written Examination ( Mains) out of 1,68,000 candidates who participated in the screening test, stating that it has selected the candidates for the Written Examination ( Mains) in the ratio of 1:50 in the order of merit, without reference to the category/community vis-a-vis the earmarked reservation to their particular community. According to the petitioners, the respondents have selected the candidates for main examination in the order of merit in the ratio of 1:50, and did not take steps to see that the candidates of reserved categories to come to the level of zone of consideration in selecting the candidates in the ratio of 1: 50, on the premise that the Government issued G.O.Ms.No.570 dated 31-12-1997 defining the programme of selection and scheme of examination of Group-I services and that Paragraph 2 of the said G.O. mentions that the number of candidates to be admitted to the written examination ( Mains) would be fifty time to the vacancies available at the material time irrespective of communities. The petitioners herein, therefore, approached the Tribunal in O.A.No.4716 of 2008 challenging the action of the respondents in selecting only 9800 candidates from 1,68,000 applicants, in the ratio of 1:50 for Mains without reference to the reservations and excluding the candidates from the zone of consideration. The Tribunal by its impugned judgment dismissed the O.A. following the judgment of the Division Bench of this Court in S. JAFFER SAHEB v. STATE OF ANDHRA PRADESH ( (1) 1985 (2) APLJ (2) 380), and unreported judgment of another Division Bench of this Court in Writ Petition No.24247 of 2004 dated 31-12-2004. Hence, this Writ Petition. Sri S. Ramachander Rao, learned Senior Counsel appearing on behalf of the counsel for the petitioners vehemently contended that the principle of reservation has been given a go bye, by the respondents, by eliminating certain reserved quota candidates from the zone of consideration at the threshold under the guise of screening test and the authorities restricted their choice only to 9800 candidates out of 1,68,000 applicants. It is further contended that screening test is not part of selection process, and that selection process consists of written examination and interview, in selection process equality cannot be denied to the reserved candidates as no rational criteria (in pursuance of the constitutional scheme) was adopted by the APPSC in eliminating the SC, ST, BC, women, and other reserved candidates including physically handicapped persons, from the zone of consideration itself on the premise that they have not qualified in the screening test. Learned Senior Counsel relying on the constitutional provisions under Article 16(4) of the Constitution of India, Rule 4 of the APPSC Rules and Rules 22, 22(A) of the A.P. State and Subordinate Service Rules, 1996, further contends that the authorities have to follow the rule of reservation and that against each vacancy 50 persons have to be allowed to compete in each category and community. Learned Senior Counsel further contends that neither Rule 4 of the APPSC Rules, nor the G.O.Ms.No. 570 were challenged in the earlier judgments of this Court, which were relied upon by the Tribunal in its impugned order, and the said judgments have to be treated as per incurium. Learned Senior Counsel further submits for 2 posts of ST (W), instead of selecting 100 candidates as per the ratio of 1:50, the respondents have selected only 21 candidates. Further, the APPSC has selected only 924 women candidates instead of selecting 2850 candidates as per 33.3% reservation by virtue of Rule 22-A of the A. P. State and Subordinate Service Rules, 1996. It is further submitted that preliminary examination is nothing but a screening test and the marks secured therein will not be reckoned for selection process and that even according to the APPSC rule that for every one post 50 candidates shall be allowed to sit for mains was never fulfilled. Learned Senior Counsel further submits preliminary test consists of general studies which includes English and mental ability, and that candidate who studied in the urban areas will have an opportunity to compete well in the general studies including English language and that every citizen has a right of equality of opportunity for public employment subject to general eligibility criteria. In support of his contentions the learned Senior Counsel has relied on the judgments reported in INDRA SAWHNEY v. UNION OF INDIA (2) 1992 Suppl. (3) SCC 217 ), STATE OF U.P. v. DR DINA NATH SHUKLA ( (3) 1997(9) SCC 633), SUPERINTENDING ENGINEER, PUBLIC HEALTH v. KULDEEP SINGH ( (4) 1997(9) SCC 199 ). Per contra, learned Advocate General appearing for the respondents contended that when large number of candidates apply for 196 Group I posts, following the dicta of the Division Bench of this Court in JAFFER SAHEB’s case and unreported judgment of this Court in W.P.No.24247 of 2004 dated 31-12-2004, the APPSC conducted the screening test, and that reservation at the stage of preliminary entry is impermissible. Learned Advocate General further contended that ratio of 1:50 has been maintained in each vacancy irrespective of community by subjecting the candidates to screening test and only top rank candidates have been selected for the earmarked posts. Further, the petitioners cannot approbate and reprobate having participated in the selection process and found to be unsuccessful in the preliminary test. In support of his contention, following judgments were relied on. SWARAN LATA v. UNION OF INDIA ((5) 1979 (3) SCC 165), UNIVERSITY OF COCHIN v. N.S.KANJOONJAMMA ( 6) 1997(4) SCC 426), K. H. SIRAJ v. HIGH COURT OF KERALA (7) 2006(6) SCC 395), OM PRAKASH SHUKLA v. AKHILESH KUMAR SHUKLA ((8) 1986 ( Suppl) SCC 285), MADAN LAL v. STATE OF J & K ((9) 1995(3) SCC 486), GOVERNMENT OF A.P. v. P. DILIP KUMAR ((10) 1993(2) SCC 310), M.P. PUBLIC SERVICE COMISSION v. NAVNIT KUMAR POTDAR ((11) 1994 (6) SCC 293), UNION OF INDIA V. T. SUNDARARAMAN ( (12) AIR 1997 SC 2418), OM PRAKASH v. AKHILESH KUMAR ( (13) AIR 1986 SC 1043 ). PITTA NAVEN KUMAR v. RAJA NARASAIAH ZANGITI ( (14 ) 2006 (10 ) SCC 261 ). In Swaran Lata’s case ( 5 supra ), it was held by the Apex Court as follows : ( 38 ) WHILE it is not disputed that the power to regulate matters relating to services under the Union of India and under the various States specified in the First Schedule to the Constitution is an exclusive function of the Union and the States under Entry 70, List I and Entry 41, List II of Seventh Schedule read with Article 309, and normally, therefore, it is the exclusive power of the Union and the States to deal with their services either in exercise of their Legislative functions or rule-making powers, or in the absence of any law or rules, in exercise of their executive power under Article 73 and Article 162 of the Constitution, which is coextensive with their legislative powers to regulate recruitment and conditions of service, nevertheless it is strenuously urged that this power of the Union and of the States which embraces within itself the power to regulate the mode of recruitment of services must yield to the supplemental, incidental or consequential directions issued by the central government in relation to the setting up of services in a newly formed State under a law made by the Parliament relatable to Article 3 of the Constitution, in the context of reorganisation of States. To put it more precisely, it is argued that the newly formed State is completely divested of its power to deal with its services. In Union of India v. P. K. Roy this court touched upon the subject, but expressed no final opinion since the question did not directly arise. ….. It is not obligatory under the proviso to Article 309 to make rules of recruitment etc. before a service can be constituted, or a post created or filled. The State government has executive power in relation to all matters in respect to which the Legislature of the State has power to make laws. It follows from this that the State government will have executive powers in respect of List II, Entry 41 of the Seventh Schedule: 'state Public Services': B. N. Nagarajan v. State of Mysore. There is nothing in the terms of Article 309 of the Constitution which abridges the power of the Executive to act under Article 162 of the Constitution without a law. The same view has been taken by this court in T. Cajee v. V. Jormanik Siem and Sant Ram Sharma v. State of Rajasthan. The same principle underlies Article 73 of the Constitution in relation to the executive power of the Union. ” In KANJOONJAMMA’s case ( 6 supra ), it was held by the Apex Court that when the University ( appellant therein ) had made general rules of reservation applicable, there is no necessity to make a special reservation rule for special recruitment and that omission to mention in the advertisement that it was a special recruitment is of no consequence. In K.H. SIRAJ’s case ( 7 Supra ), the High Court of Kerala invited applications for the appointment to the post of Munsif Magistrate in the Kerala Judicial Service. Out of more than 1800 candidates who had applied, 1291 applications were found valid. 118 candidates passed the written examination. Out of the said candidates, 88 passed the interview and select list was prepared from amongst these 88 candidates. The appellants therein were not selected as they had not secured the prescribed minimum marks in the interview. The appellants challenged the said selection. They inter alia contended that in the absence of specific legislative mandate under Rule 7(i) of the Kerala Judicial Service Rules, 1991 prescribing cut-off marks in oral examination, fixing of separate minimum cut- off marks in the interview for further elimination of candidates after a comprehensive written test touching the required subjects in details was violative of the statute. The Supreme Court dismissing the appeals held as follows : “ …Thus, apart from the amplitude of the power under Rule 7 it is clearly open for the High Court to prescribe benchmarks for the written test and oral test in order to achieve the purpose of getting the best available talent. There is nothing in the Rules barring such a procedure from being adopted. It may also be mentioned that executive instructions can always supplement the Rules which may not deal with every aspect of a matter. Even assuming that Rule 7 did not prescribe any particular minimum, it was open to the High Court to supplement the rule with a view to implement them by prescribing relevant standards in the advertisement for selection. ” In OM PRAKASH SHUKLA’s case ( 8 supra ), it was held by the Apex Court as follows : “ ….. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realized that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination.” In NAVNIT KUMAR POTDAR’ s case, ( supra ), it was held by the Apex Court that where the selection is to be made solely on the basis of interview, it is necessary to fix limit of candidates to be called for interview on some rational objection basis. In P. DILIP KUMAR’s case ( 10 supra ), the Apex Court held that it is always open to the recruiting agency to screen the candidates due for consideration at the threshold of the process of selection by prescribing higher eligibility qualification so that the field of selection can be narrowed down with the ultimate objective of promoting candidates with the higher qualifications to enter the zone of consideration. In T. SUNDARARAMAN’s case ( 12 supra ) three posts of Assistant Professor, Medicine were advertised, specifically mentioning that short listing would be made if applicants are many. The Apex Court considering its earlier judgment in P. DILIP KUMAR’s case ( 10 supra ), held that short listing done on the basis of higher experience is not improper. In PITTA NAVEEN KUMAR’s case ( 14 supra ), the Apex Court held that a candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution has only a right to be considered therefore. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise. We have given our anxious consideration to the respective submissions made by the learned counsel on either side and perused the impugned order passed in O.A.No.4716 of 2008 by the Tribunal and other material made available on record. The short point that falls for consideration in this writ petition is when the APPSC conducts preliminary examination for shortlisting the candidates after declaring the results of the screening test, whether the candidates to be allowed for the main examination would be at the rate of 1 : 50 against each vacancy in each group and each category or at the rate of 1: 50 ‘irrespective of the communities’ ? Before going into the merits of the case, it is apt to extract para 2 of the Annexure II appended to G.O.Ms.No.570 dated 31-12-1997. “ 2. There will be a Screening Test ( Objective Type ) comprising General Studies and mental ability. This test is meant for short listing the number of candidates to be admitted to the written examination i.e., consisting of : A) Compulsory Subjects : 1) Essay 2) General English 3) General Studies and B. OPTIONAL SUBJECTS ( Two Optionals ) : First Optional Paper I & II (Items 4 and 7 ). Second Optional Paper I & II (Items 6 &7). The marks secured in the screening test will not be counted for ranking. The number of candidates to be admitted to the written examination (Conventional Type) would be 50 (fifty) time to the total number of vacancies available at material time irrespective of communities. ” (emphasis supplied) Para 1 of the Annexure II appended to the notification no.31 of2007 dated 27-12-2007 reads as follows: “ 1. There will be a Screening Test (Objective Type ) comprising General Studies and mental ability. This test is meant for short listing the number of candidates to be admitted to the written (Conventional Type ) examination i.e., consisting of six compulsory papers. The number of candidates to be admitted to the Written Examination ( conventional type ) would be 50 times to the vacancies available at material time irrespective of communities. ” It is well settled proposition that conduct of preliminary test/ screening test / eliminatory test is for shortlisting the candidates and such procedure is supported by many judgments of the Apex Court. The real grievance of the petitioners seems to be that instead of permitting the candidates to sit for the written examination at the rate of 1:50 against each group and category of vacancy, they have adopted a method of calculating at the rate of 1 : 50 from among the top ranks in the screening test, and thus eliminated many of the candidates. Even a perusal of the statement of ratio placed before us by the learned Standing Counsel for the APPSC, shows that at serial no.3 (BC-A), Sl.No.5 ( BC-B), and Sl.No.9 (BC-D), the ratio is more than 1 : 50, whereas in respect of others it is less than 50. In case of ST (Women), it is 1 : 11. Thus, the contention of the learned Senior Counsel is that when two vacancies are available atleast 100 candidates must be allowed from the category of ST (Women) to write the main examinations, then only it amounts to giving equal opportunity of competing in the competitive examination under the selection process. The tables placed before us by the learned Senior Counsel for the petitioners reads thus: TABLE-1 STATEMENT SHOWING THE RATION S.NO. CATEGORY VACANCIES CANDIDATES RATIO 1. OC 69 3173 46 2. OC (W) 31 423 14 3. BC-A 9 799 89 4. BC-A (W) 4 63 16 5. BC-B 12 1772 148 6. BC-B (W) 6 152 25 7. BC-C 3 112 37 8. BC-C (W) 0 14 --- 9. BC-D 10 1579 158 10. BC-D (W) 4 112 28 11. BC-E 5 169 34 12. BC-E (W) 1 14 14 13. SC 22 1062 48 14. SC(W) 9 125 14 15. ST 9 210 23 16. ST (W) 2 21 11 TOTAL : 196 9800 50 TABLE-2 CATEGORY-WISE DATA OF THE CANDIDATES PERMITTED TO APPEAR FOR MAINS AS PER THE APPSC CATE- GORY POSTS MEN WOMEN TOTAL CANDIDATES TO BE PERMITTED FOR MAINS AS PER 1: 50 RATIO MEN WOMEN TOTAL ACTUAL NUMBER OF CANDIDATES PERMITTED TO APPEAR FOR MAINS AND THEIR RATIO MEN RATIO WOMEN RATIO OC