IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH and THE HON'BLE SRI JUSTICE P.SWAROOP REDDY WRIT PETITION NO : 2103 of 2009 Between: 1 P.M. Narsing Rao S/o. Sri P. Mallesh R/o. H.No. 28-72, Subash Nagar, Tirumal ghery, Secunderabad. 2 T. Ashok Kumar S/o. Sri Thangaraj R/o. 6-12-24, Gandhi Nagar, Ramakrishnapuram (Post), Secunderabad. ..... PETITIONER(S) AND 1 M. Srinivas S/o. Ramachanriagh R/o. H.No.1-8-27, North Kamalangar, ECIL Post, Hyderabad. 2 Union of India Rep. by its Secretary Ministry of Defence, New Delhi. 3 Union of India Rep. by its Secretary M/o. Personnel Public Grievances and Pensions, New Delhi - 110 001. 4 The Commandant HQ.,Military College of Electrical & Mechanical Engineering, Secunderabad, A.P. 5 Deputy Commandant HQ., MCEME., Secunderabad, A.P. 6 K. Ranga Rao S/o. Sambaiah O/o. HQ., MCEME., Secunderabad. 7 R.G. Chauhan S/o. D. Chauhan HQ., MCEME., Secunderabad. 8 P. Satyanarayana S/o. Raja Niaud HQ., MCEME., Secunderabad. 9 Venkata Sivaji S/o. Appa Rao HQ., MCEME., Secunderabad. 10 P. Ravi Kumar S/o. Shiva Nageswar Rao HQ., MCEME., Secunderabad. 11 B.B. Venkataiah S/o. Ramaiah O/o. HQ., MCEME., Secunderabad. 12 Y. Kumar S/o. Sube Sing HQ., MCEME., Secunderabad. 13 V. Renu S/o. Vaijapuri HQ., MCEME., Secunderabad. 14 S. Gandhi Surasapalli HQ., MCEME., Secunderabad. .....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 a Writ, Order preferably in the nature of Writ of Mandamus and declare order and judgment in O.A. No. 182/2008 dated 2- 1-2009 rendered by Hon'ble Central Administrative Tribunal, Hyderabad, as illegal and contrary to Law and unconstitutional. Counsel for the Petitioner:DR.K.LAKSHMI NARASIMHA Counsel for the Respondent No.: MR.PONNAM ASHOK GOUD(ASST SOLICITOR GEN) The Court made the following : VE & PSR, JJ. W.P.No. 2103 of 2009 Order: (Per P. Swaroop Reddy, J.) This writ petition is filed by the fourteenth and fifteenth respondents in O.A.No. 182 of 2008 on the file of the learned Central Administrative Tribunal, Hyderabad Bench, Hyderabad. 2. Relevant facts are as follows: The fourth respondent herein called for applications for recruitment to 12 vacancies (SC-2; ST-1; OBC-3, UR-6) of the posts of Mazdoors by notification dated:27.8.2005. After some process for selection went on, the notification dated:27.8.2005 was cancelled and another notification dated:2.9.2006 was issued calling for applications for fifteen posts of Mazdoors (SC-2; OBC-4; UR-9); out of them, subsequently three vacancies were cancelled. In the notification dated:2.9.2006, it was mentioned that two OBC vacancies and one SC vacancy are meant for Ex-Servicemen category. The process of selection was completed and the present first respondent (applicant in O.A.No. 182 of 2008) was placed at No.1 of Waiting List. 3. After the entire process was completed, the present first respondent filed O.A.No. 355 of 2007 which was disposed of with certain directions and against which W.P.No.1006 of 2008 was filed and it was allowed to give notice to certain respondents and again the present O.A.No. 182 of 2008 was filed which was allowed partly. 4. The contention of the first respondent (the applicant in O.A.No. 182 of 2008) is that the reservation for Ex-Servicemen candidates in OBC and SC categories is illegal and is against Law laid by the Hon’ble Supreme Court in Indira Sawhney v. Union of India[1]. The Tribunal accepted the contention of the applicant that if Ex-Servicemen from Un-reserved (UR) also applied and selected; vacancies would have been available to Ex-Servicemen from the UR and consequently there was possibility of candidates belonging to OBC Ex-Servicemen category being selected and an extra post would have been available for OBC candidate, and the applicant, who is No.1 in the waiting list, would have got selection. It further held that the notification dated: 12.9.2006 insofar as it reserves vacancies for Ex-Servicemen in the category OBC and SC as illegal and a fresh notification has to be issued for filling up Ex-Servicemen vacancies only. There is no need to issue fresh notification in respect of the candidates other than Ex- Servicemen. If both the Ex-servicemen to be selected based on the merit following such a fresh notification, are from the same category i.e., UR, OBC or SC, then two of UR, OBC or SC candidates already selected will have to be relieved. If one of the two Ex-Servicemen selected is from UR category and one from SC category, the last candidate selected from UR category will have to be removed and newly selected Ex-Servicemen will have to be placed in his place. If one candidate each from OBC category and SC category are selected, they will replace two Ex-Servicemen, who have already been selected and there will be no disturbance of non-Ex-Servicemen candidates already selected and appointed. 5. Now, the writ petitioners, who are selected under OBC Ex-Servicemen and SC Ex-Servicemen category contend that their selection is in accordance with law and that the present first respondent, who has participated in the selection process throughout, pursuant to both the notifications, cannot now challenge the selection process, as he is not selected. 6. It is also the contention of the writ petitioners that they are now over-aged for applying for any employment; they are not eligible to apply for any other post, they have completed two years of service as Mazdoors and in case they are sent out of job, at this stage, they will be put to hard ship and it amounts to taking away their right to live guaranteed under Article 21 of the Constitution of India. 6. In the reply statement before the Tribunal, in paragraph-12, the fourth respondent herein, contended that the Ex-servicemen from all categories, appeared in the written and practical test; a separate merit list was prepared for the candidates selected from Ex-servicemen category and the first and second in the category of Ex-servicemen, are from OBC and SC categories, as such those vacancies were given to Ex-servicemen as per the procedure and the remaining ten vacancies of Mazdoors were filled as per the norms of the caste and age. 7. In the counter affidavit filed in this writ petition, the fourth respondent contended that a total of 29 Ex-servicemen of all categories have applied and were considered for selection. The recruitment in respect of the Ex-servicemen was also carried out with the other selections and separate merit list was prepared and as there were only two vacancies for Ex-servicemen, firs and second persons in the category of Ex-servicemen were selected for employment, as per their caste category and accordingly one vacancy each was assigned for OBC and SC category. This averment is in line with the stand taken by the fourth respondent before the Tribunal below. 8. In the counter filed before this court, the fourth respondent, further contended that the unreserved Ex-serviceman candidate was placed in third position in the merit list and as such he could not be considered, the contention of the present first respondent that in case unreserved Ex-servicemen candidates appeared and secured place in selection, the first respondent, who belongs to OBC category would have got that vacancy is incorrect. 9. Thus, as per the counter filed before the Tribunal, as well as before this Court, the contention of the fourth respondent is that the persons of the category of Ex-servicemen belonging to OBC and SC categories were subjected to the process of selection and the persons that have secured first and second positions were selected. It is not their contention that reservation of vacancies for Ex-servicemen under OBC and SC Category is in accordance with Law. 10. The notification dated:2-9-2006 clearly shows that the number vacancies is 15 – SC-2; OBC-4 and Geneal-9 and it is also mentioned that two vacancies of OBC and one vacancy of SC are reserved for Ex-servicemen. Thus, when the notification clearly shows that two vacancies out of four vacancies of OBC and one vacancy out of two vacancies of SC are reserved for Ex-servicemen, the contention of the fourth respondent that candidates belonging to all categories of Ex- servicemen were subjected to test and top two candidates amongst them were selected is untenable. When the notification, itself, clearly postulates that two vacancies of OBC out of four vacancies and one vacancy of SC, out of the two are meant for Ex-servicemen, there was absolutely no possibility of other categories candidates being considered under Ex-servicemen category. 11. The Apex Court in Indira Sawhney’s case (1 supra) observed that “the reservations infavour of SCs, STs and other backward classes (under Article 16(4) may be called vertical reservations); whereas reservations in favour of physically handicapped under Clause (1) of Article 16 can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations. In case three vacancies are reserved in favour of physically handicapped, that would be relatable to clause (i) of Article 16. The person selected against this quota will be placed in the appropriate category, if he belongs to SC category he will be placed in that quota by making necessary adjustments and if he belongs to OC category, he will be placed in the category by making necessary adjustments.” 12. As contended by the learned counsel appearing for the first respondent, the vacancies of Ex-servicemen would be similar to the vacancies of physically handicapped persons and would go under the categories of horizontal reservations as contemplated under clause (1) of Article 16. Thus, reserving the vacancies for Ex-servicemen under a particular quota i.e., OBC/SC, even at the time of notification has to be held to be illegal. As already referred, as per the counters of the fourth respondent, their stand is different i.e., considering all the candidates that have applied under the Ex-servicemen quota in all categories, and selecting the meritorious candidates and not by reserving vacancies for Ex-servicemen from out of OBC/SC categories. 13. In the above circumstances, the finding of the Tribunal cannot be held to be erroneous. The contention that the first respondent herein, having participated in the selection process, pursuant to both the notifications, cannot challenge the same, is totally untenable, as it is not, as if the writ petition is filed at a belated stage. No doubt, the proper thing would have been to challenge the notification before selection process commenced; but, for that reason, when the Administrative Tribunal has already given a finding that cannot be set aside, particularly, when there is no delay in challenging the selection. The writ petition accordingly, is liable to be dismissed. 14. The consequences of dismissing the writ petition would be the present petitioners who have been working for about last three years by now would loose their employment; not only that, a situation would be created whereby some other candidates selected and working would also face the threat of removal, as, in case, in a fresh recruitment, if Ex-Servicemen are selected from UR category, two candidates already working under UR category have to give way, if three candidates are selected from OBC Ex-Servicemen category, one working OBC candidate has to go and if two candidates are selected from SC category, one more SC candidate already serving has to go. 15. These are low paid posts of Mazdoors and sending away, already selected and working people, who have been there for almost three years, may not be desirable. The fourth respondent-appointing authority committed a mistake in the process of selection. Initially, notification dated: 2-9-2006 was given calling for applications for fifteen posts and it was later reduced, during the process of selection to twelve. As such, there may not be any difficulty for the fourth respondent to accommodate one more candidate, in view of the strength of the staff in the fourth respondent-organization. Considering these circumstances, instead of displacing the present petitioners, and in order to avoid possible displacement of other persons already working as Mazdoors, we feel it desirable to appoint the present first respondent (applicant in O.A.No. 182 of 2008) as Mazdoor, as, in case, there was no reservation for Ex-Servicemen from OBC category, he would have got selection, being first candidate in the waiting list of OBC category. 16. Thus this writ petition is disposed of directing the fourth respondent-appointing authority to appoint the present first respondent (applicant in O.A.No. 182 of 2008) as Mazdoor within three months from today. We make it clear that consequent to such appointment, the first respondent would not be entitled to any other benefits or wages, except seniority, from the date of selection of other candidates. He would be entitled to all other benefits only from the date he joins the duty. Consequent to the appointment of the first respondent in OBC category, the roster points for future recruitment and for other administrative purpose can be appropriately adjusted by the fourth respondent. No costs. __________________ V. ESWARAIAH, J. Dated:05-02-2010 *BVS _______________________ P. SWAROOP REDDY, J. [1] AIR 1993 SC 477