THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.NO. 4545 OF 2010 /12/2010 Between: D. Babu Rao s/o D.C.K. Veeraiah, Hyderabad. … Petitioner And: The Government of Andhra Pradesh rep by its Principal Secretary, Law 9LA&J SC.F) Department, Hyderabad and another … Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.NO. 4545 OF 2010 ORDER: (Per Sri Justice Goda Raghuram) The writ petition is filed for the following relief: … declaring the selection procedure adopted while selecting candidates for appointment by transfer to the posts of Civil Judge without first notifying that there will be minimum marks for interview and also the action of discriminating between direct recruits from open category and direct recruits by appointment by transfer from in service candidates in so far as minimum marks are concerned which itself is not notified and also the action of the respondents in prescribing 50% qualifying marks for Viva-Voce whereas it is only 40% for Written Examination in the Selection conducted pursuant to the Notification No. 1/2009-RC dated 28.01.2009 and further Notification viz., Notification No. 2/2009-RC (Backlog vacancies) dated 16.02.2009 issued for appointment to the posts of Civil Judge by the respondents are contrary to the rules, contrary to the law and amount to arbitrariness in selection and illegal. The petitioner belongs to BC-A community and is now working as a Junior Assistant in the High Court since 18.03.1997. Pursuant to the Notifications Nos. 1/2009-RC dated 28.01.2009 and 2/2009-RC (Backlog vacancies) dated 16.02.2009, the petitioner applied and having qualified at the written examination was called for oral inter view (viva-voce). He alleges that he was denied selection since he failed to secure the minimum 10 marks in the viva-voce. The petitioner contends that since the rule provides that the minimum marks that ought to be secured by a BC candidate at the viva-voce is 8 and not 10, he is qualified and could not be denied appointment. Though the petitioner raised several contentions with regard to the selection procedure adopted and the rationality of prescription of minimum marks for the viva-voce, the same contentions were also urged by the petitioners in W.P.Nos. 7493/10 and batch (which were heard along with this writ petition and together) and have been rejected in the judgment pronounced in W.P.No. 7493/10 and batch, today. In response, in para-7 of the counter by the 2nd respondent, the Registrar (Recruitment) of the High Court states that since no reservation is provided in recruitment by transfer and the petitioner applied for vacancies notified for recruitment by transfer to the posts of Civil Judge, he is required to obtain 10 marks as an OC candidate. It is contended in amplification that since all vacancies meant for recruitment by transfer are unreserved they are treated as open category vacancies and hence a candidate who is an applicant for recruitment by transfer, must obtain 10 marks and the community of the candidate has no relevance in so far as a vacancy to be filled by recruitment by transfer is concerned. In a reply affidavit the petitioner pleads that he secured 8.2 marks at the viva-voce and having secured more than minimum marks required for a BC community candidate, is entitled to be selected on the basis of the aggregate of the marks obtained in both the written examination and in the viva-voce. Along with the reply affidavit the petitioner has filed a copy of the information furnished by the State Public Information Officer-cum-Registrar (Judicial) of the High Court dated 15.03.2010 responding to the petitioner’s query lodged under the provisions of the Right to Information Act, 2005. From the information furnished it is clear that the petitioner who had appeared at the recruitment test with Regn. No. 988 secured 50 marks in the written examination and 8.2 marks in the viva-voce. In response to another aspect of the petitioner’s query, he was also informed that the 5 Hon’ble Judges of the High Court, who had conducted the viva-voce, had allotted to the petitioner 08; 08; 07; 09 and 09 marks, respectively. Thus from the petitioner’s averments in the reply affidavit taken together with the information furnished by the State Public Information Officer-cum-Registrar (Judicial) of the High Court dated 15.03.2010 it is apparent that the petitioner obtained the aggregate of 58.2 marks in the written examination and viva-voce and obtained 8.2 marks in the viva-voce. That he is a BC-A community candidate is not denied. In para-18 of the writ petition the petitioner refers to the marks obtained by the 22 candidates selected for appointment by the method of recruitment by transfer as displayed in the High Court web site on 17.01.2010. The last selected candidate as per this tabular statement is a candidate with Regn. No. 1036 who obtained 43.60 marks. As the petitioner obtained the aggregate of 58.20 marks, he is eligible and entitled for selection for appointment as Civil Judge by recruitment by transfer, if his contention is accepted. Substantial similar aspect fell for consideration of the Supreme Court in Haridas Parsedia vs Urmila Shakya and Ors ( [1] ). The State of Madhya Pradesh issued an advertisement in April 1993 for departmental examination for filling up the posts of Transport Sub Inspector. The Madhya Pradesh Transport Department Subordinate (Class III Executive) Service Recruitment Rules, 1971, provided a channel of promotion from the category of clerks to the post of Transport Sub Inspector and provided that 20% of the posts of Transport Sub Inspector are reserved for being filled up from the cadre of clerical service in the Transport Department. The Government f Madhya Pradesh on 19.02.1978 notified a 10% relaxation for SC/St candidates in the Departmental examination to be conducted for recruiting candidates to higher posts in transport services. A candidate has to generally secure 50% marks in the written examination for eligibility for promotion. The April 1993 recruitment notification was however for limited recruitment to fill up the vacancies of Transport Sub Inspectors from reserved candidates belonging to SC/ST category. The administration after due process of recruitment issued orders of appointment to the appellants (before the Supreme Court) even though they secured 40% marks and above but less than 50% marks in the written examination. The orders of appointment were successfully challenged before the Madhya Pradesh State Administrative Tribunal and the High Court. Before the Supreme Court the issue was since recruitment of departmental candidates from the clerical cadre was confined only to SC/ST candidates for filling up reserved vacancies meant for them, whether the general pass marks provided in the Rules of 50% marks in each paper could be scaled down to 40% by administering 10% relaxation for the SC/St candidates as per the State policy. On behalf of the non-official respondents it was contended before the Supreme Court that since recruitment of the departmental candidates was confined only to SC/ST candidates, no relaxation of the general pass marks from 50% to 40% was impermissible as all the competing candidates belong to the same category i.e., reserved category of SC/ST. According to the respondents, relaxation would apply only if recruitment was for both SC/ST candidates as well as general candidates. The Supreme Court rejected this contention and observed: It is difficult to countenance this contention. Such a denial of relaxation will be ex-facie discriminatory and arbitrary. It would also fly in the face of established government policy of relaxation of 10 Per Cent passing marks under Art. 16 (4) for such reserved category candidates. It is purely a fortuitous circumstance that the examination is confined only to the SC/ST candidates for being appointed to reserved posts comprising of 36 Per Cent out of total available promotion posts and whereat general category candidates do not and cannot compete. Even when SC/ST candidates compete among themselves for the reserved category posts, they are required to pass the written examination. For them the passing marks remain the same i. e. 40 Per Cent as compared to general category candidates for whom 50 Per Cent passing marks are prescribed. This is the firm policy of the Government for the benefit of SC/ST candidates. It is easy to visualize that after passing such departmental examination, all of them will be absorbed in some higher cadre of Transport Sub-Inspector along with general category candidates. Secondly, in our view it is patently erroneous to hold that the decision of the Government for relaxation of passing marks for SC/ST departmental candidates at the departmental examination can be applicable only when in such examination, the departmental candidates belonging to general category also compete with the SC/ST candidates and not otherwise. Holding general examinations for all types of candidates at a time or separate examinations for only SC/ST candidates for being appointed to the reserved posts on the one hand and for general category candidates on the other wherein SC/ST candidates can also compete for unreserved posts, is totally irrelevant for judging the efficacy of the relaxation policy. The general sweep of the policy decision already taken by the State of Madhya Pradesh under Art. 16 (4) cannot get diluted on the basis of such an irrelevant and fortuitous circumstance. (emphasis added) In our judgment in W.P.No. 7493/10 and Batch we have interpreted the provisions of sub-rules (7) to (10) of Rule 6 of the Andhra Pradesh State Judicial Service Rules, 2007 (‘the 2007 Rules’) and have held inter alia that sub-rule (10) and the proviso thereunder is applicable to recruitment by transfer as well as direct recruitment; notwithstanding the generality of power conferred on the High Court in sub-rule (6), to prescribe the necessary suitability test for recruitment by transfer. The proviso to sub-rule (10) of Rule-6 enjoins that a candidate shall secure minimum qualifying marks of 40%, 35% and 30% and 10, 8 and 6 (for OC, BC and SC/St categories, respectively) in the written examination and viva-voce, respectively. As the proviso to sub-rule (10) of Rule 6 specifies that a BC category is qualified for being considered for appointment as a Civil Judge on securing 35 marks in the written examination and 8 marks in the viva-voce, in view of the decision of the Supreme Court in Haridas Parsedia (supra), a BC candidate who secured 8 marks in the viva-voce must is qualified. The aggregate of the marks obtained by the qualified candidates in the written examination and viva-voce must be considered for ascertaining whether the candidate secured the appropriate rank as would entitle him to an order of appointment, vis-à-vis other candidates. On the above analysis as the petitioner obtained 8.20 marks in the viva-voce and 50 marks in the written examination and thus an secured aggregate of 58.2 marks, he is eligible for appointment. It also requires to be noticed that in Para-8 of the 2nd respondent’s counter it is specifically pleaded that the 2007 Rules prescribe a minimum of 10 marks for OC; 8 marks for BC and 6 marks for SC/St candidates in the viva-voce and the same are common for both direct recruitment as well as recruitment by transfer. The fact that there is no reservation in recruitment by transfer (in view of the provisions of Rule-7 of the 2007 Rules, which applies principle of reservation only for direct recruitment) is an irrelevant criterion in view of the fact that the proviso to sub-rule (10)of Rule 6 of the 2007, Rules is admitted to apply to recruitment by transfer as well in view of our judgment in W.P.No. 7493/10 and batch. The purpose of the provisions of Rule-7 and of the proviso to sub-rule (10) of Rule 6 of the 2007, Rules are distinct. Rule-7 provides for reservation to candidates belonging to BC, SC & ST categories in direct recruitment. Thereby that none other than candidates belonging to the respective reserved communities can be considered for the posts reserved in direct recruitment for each of the reserved segments. This is a quantified affirmative action programme. The purposes of the proviso to sub-rule (10) of Rule 6 (a similar provision is the proviso to sub-rule (4) of Rule 6 – pertaining to recruitment to the category of District Judges) is to provide a concession in the marks required to be obtained at the written examination and the viva-voce. This provision is in recognition by the rule making authority that candidates belonging to the specified reserved segments cannot compete with candidates belonging to general category, having regard to their social backwardness and with a view to enable adequate representation in the public services. The concession in marks that is provided, whether for the written examination or in the viva-voce is reservation segment specific and is not concerned with whether there is a (quantitative) reservation provided in the recruitment process; i.e., whether by direct recruitment or recruitment by transfer. On the above said analysis, the rejection of the petitioner’s case for appointment as Civil Judge, is unsustainable. Accordingly, the petitioner is entitled to succeed in the writ petition which is allowed. A direction is issued to the 2nd respondent to consider the case of the petitioner for appointment to the post of Civil Judge pursuant to the process of recruitment held in accordance with the notifications Nos. 1/2009-RC dated 28.01.2009 and 2/2009-RC (Backlog vacancies) dated 16.02.2008. The case of the petitioner must be considered by treating him as qualified in the viva-voce examination, since he secured more than 8 marks, being a BC-A candidate. The aggregate of marks obtained by him in the written test and viva-voce being 58.2 and since candidates who secured a lower aggregate mark were found eligible and issued orders of appointment, the petitioner is also declared eligible for issue of order of appointment; which shall follow. The writ petition is allowed as above, but in the circumstances without costs. Dt: Pvsn -------------------------- Justice G.Raghuram ------------------------------------------ Justice Samudrala Govindarajulu [1] (2000) 1 SCC 81