HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE N.RAVI SHANKAR W.P.No.514 of 2011 Dated: 22-02-2011 Between: B.Sambasivaiah & others …Petitioners AND The Government of A.P., Rep. by its Principal Secretary Law (LA & J SC.F) Department, Secretariat, Hyderabad & another Respondents This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE N.RAVI SHANKAR W.P.No.514 of 2011 ORDER: (Per Hon’ble Sri Justice A.Gopal Reddy) Petitioners, 7 in number, filed this writ petition seeking a writ of mandamus declaring that they are entitled to be considered for appointment as Junior Civil Judges under recruitment by transfer on the basis of total number of marks obtained by them both in interview and oral taking cut-off pass marks in viva voce as 8 marks as has been done in the case of direct recruitment, as that would also equally apply to the candidates for recruitment by transfer, and for appropriate relief. 2. Factual aspects which are not in dispute are, that pursuant to the notification No.1/2009-RC, dated 28.1.2009 notifying 59 vacancies of Junior Civil Judges posts by direct recruitment and 15 posts by recruitment by transfer; and another notification No.2/2009-RC, dated 16.2.2009 notifying 24 (21 by recruitment by transfer and 3 ST vacancies (2 W)) backlog vacancies of Junior Civil Judge posts, the petitioners herein applied for the said post. Thereafter, the petitioners were declared qualified in the written examination. Oral interviews were conducted to the candidates qualified in the written examination in the ratio of 1:3 of the notified vacancies from 19.11.2009 to 4.12.2009. On finalization of the selections by the High Court, select list has been forwarded to the Government on 25.1.2010 recommending issuance of appointment orders to 69 candidates i.e. 47 candidates under direct recruitment and 22 candidates under recruitment by transfer. Government after verification of the antecedents of the selected candidates issued G.O.Ms.No.112, dated 28.8.2010 approving the selection of 68 candidates duly withholding one candidate as he had suppressed the material information in his application, and passed orders appointing them as Civil Judges by direct recruitment and recruitment by transfer. 3. Petitioners herein have not chosen to question the selection nor laid any claim immediately on finalization of the selection list, which was widely published by displaying on the web-site of the High Court on 17.1.2010. Later one of the candidates namely Babu Rao filed W.P.No.4545 of 2010 stating that he belongs to BC-A community, that the Rules provide minimum marks ought to be secured by a BC candidate in viva voce at 8 and not 10, and that he was qualified and could not be denied appointment. The said writ petition was allowed on 2.12.2010 holding that proviso to sub-rule (10) of Rule 6 of the Andhra Pradesh State Judicial Service Rules, 2007 (for short ‘Rules’) 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) in the written examination and viva voce respectively, and that the said proviso would be equally applicable to direct recruitment posts and also the posts in the category of recruitment by transfer in view of the decision of the Supreme Court in Haridas Parsedia vs Urmila Shakya and Ors[1], and that a BC candidate who secured 8 marks in the viva voce must be held qualified even for the posts meant for recruitment by transfer. In that view of the matter, in the above W.P.4545 of 2010 the petitioner therein was declared to be eligible for appointment as he obtained 8.20 marks in the viva voce and 50 marks in the written examination securing an aggregate of 58.20 marks. 4. Relying upon the aforesaid judgment in W.P.No.4545 of 2010, the present writ petition came to be filed on 18.1.2011. It came up for admission on 24.1.2011 and it was posted for admission on 27.1.2011 to ascertain from the Standing Counsel of the High Court whether any vacancies were notified for the subsequent years to the year of selection. Pursuant to the same, information has been furnished on 31.1.2011 stating that a notification No.29/2011-RC, dated 25.1.2011 was already issued notifying the vacancies for the year 2011 in the category of Civil Judges i.e. 15 under direct recruitment and also 14 under recruitment by transfer covering unfilled vacancies and future vacancies; and also 32 vacancies by direct recruitment and 8 vacancies for recruitment by transfer under general recruitment. The said notification was also put on web-site of the High Court on the same date. 5. The affidavit filed by the Registrar (Recruitment) on behalf of second respondent also discloses that for want of vacancies, the posts were not notified for the year 2010. It is also stated in the said affidavit that after finalization of the selection and when the select list has been forwarded to the Government on 25.1.2010 recommending for issuance of appointment orders to 69 candidates as recruited under the above notification there were only 28 vacancies in the category of Civil Judges (Junior Division) and actual vacancies as on 1.9.2010 i.e. due to retirement, there were only 55 vacancies available and therefore, the High Court could not give posting orders to 68 selected candidates. Since the newly recruited candidates, 68 in number, have to undergo one year basic training as per Rule 8 of the Rules, for administrative convenience the High Court addressed the Government for creation of 65 supernumerary posts of Junior Civil Judges for 4 months training period anticipating that by December, 2010 necessary vacancies would be available for all the 68 candidates. After training, the 68 newly recruited Junior Civil Judges were given posting orders in December, 2010 after the required number of vacancies arose. 6. It is admitted by the petitioners that the 5th petitioner filed W.P.No.7493 of 2010 and the same was dismissed. However, the petitioners herein contend that the interpretation placed upon Rule 6(10) of the Rules in W.P.No.4545 of 2010 which is in favour of the petitioners has not been raised by the 5th petitioner herein in W.P.No.7493 of 2010 and therefore, the earlier judgment will not operate as res judicata. The main contention of the petitioners is that as per proviso to Rule 6(10) of the Rules, the minimum marks to be secured in viva-voce are 8 for B.C. candidates even in recruitment by transfer and since all the petitioners belong to B.C. category they cannot be disqualified on the ground that they have not secured 10 marks in viva-voce test, which is prescribed for OC candidates in direct recruitment.. 7. Sri D.Prakash Reddy, learned counsel appearing for the petitioners contends that the petitioners have obtained more than 8 marks in the viva-voce test and since all the petitioners are of different categories in B.C. community, they cannot be denied appointment on the ground that they have not secured minimum 10 marks in the viva- voce test on the ground that there are no reservations for B.Cs. under recruitment by transfer. He further contended that this Court in W.P.No.4545 of 2010 already interpreted the Rule and therefore rejection of the petitioners’ case for appointment as Junior Civil Judges is arbitrary as they are eligible to be appointed to the said post. He further contends that appointments to the petitioners’ cannot be denied on the pretext that the panel term has expired and posts have been filled up by some one else. Sri Prakash Reddy placed reliance placed on the judgment of the Supreme Court in Purushotam v. Chairman, M.S.E.B. and another[2] in support of his above contention. The same is misplaced to the facts of the present case. 8. Sub-rule (6) of Rule 6 of the Rules authorizes the High Court to prescribe the necessary suitability test for recruitment by transfer. In the impugned first notification No.1/2009-RC, dated 28.1.2009 notifying the vacancies of Civil Judge meant for direct recruitment and recruitment by transfer, in note No.1, it is stated that the vacancies are subject to the Rule of Special Representation under Rule 7 of the Andhra Pradesh State Judicial Service Rules, 2007 and also subject to the result of W.P.No.15267 of 2007 and batch. But in the notification No.2/2009-RC (for Backlog vacancies), dated 16-2-2009, the eligibility has been prescribed as under: “The candidate shall secure a minimum qualifying mark of 40% for OC category and 30% for ST category in the written examination and a minimum marks of 10 for OC category and 6 for ST category in the viva-voce.” Rule 6 of the Andhra Pradesh State Judicial Service Rules, 2007 provides the methodology for conducting the examination. Sub-rule (7) deals with the methodology of conducting examination, syllabus and the minimum marks to be secured both in written as well as in interview. Rule 7 prescribes the reservation as contemplated under Rules 22 and 22-A of the Andhra Pradesh State and Subordinate Service Rules, 1996 insofar as they relate to Scheduled Castes, Scheduled Tribes, Backward Classes, Women and one percent for Physically handicapped [Orthopaedically Handicapped (lower portion of the body)] persons shall apply to the appointments to be made by direct recruitment. The validity of notifications issued has been upheld by this Court in W.P.No.7493 of 2010 and batch, dated 2.12.2010 stating that on clear stipulation in the notifications, dated 28.1.2009 and 18.2.2009 every candidate is aware of the requirement of acquiring minimum marks in the viva-voce depending upon the category to which he/she belongs. It was further held in the said judgment that the petitioners having appeared at the viva-voce could not secure the minimum marks and therefore, they are estopped from questioning the process of selection and accordingly dismissed the writ petitions. In the second notification as referred to above, the eligibility has been prescribed that all candidates shall secure minimum marks of 10 for OC category and 6 for ST category, treating all the other vacancies notified as OC category. 9. In Malik Mazhar Sultan and another v. U.P. Public Service Commission and Ors in Civil Appeal No.1867 of 2006, dated 4.1.2007, the Supreme Court directed that number of vacancies to be notified by the High Court for the Civil Judges is 15th January and the vacancies to be calculated including existing vacancies, future vacancies that may arise within one year due to retirement and also due to promotion, death or otherwise, shall be 10% of sanctioned posts. But the notifying of 10% of the sanctioned posts has been modified by the Supreme Court by its subsequent order, dated 24.3.2009 in I.A.No.56 of 2008 in Civil Appeal No.1867 of 2006 holding as under: “It has been pointed out by the counsel appearing for the various High Courts that 10 per cent of the sanctioned posts are notified in some States. A large number of posts are to be notified whereas there was corresponding number of vacancies to be filled if the candidates are selected in the select list. There may be an expectation for such candidates to get appointment and this creates unwanted litigation by the candidates and it is prayed that the existing vacancies alone be notified along with the anticipated vacancies that may arise in the next year and some candidates also be included in the wait list prepared by the High Courts/PSCs. In supersession of the order passed by this Court on 4.1.2007, this court direct that in future the High Courts/PSCs shall notify the existing number of vacancies plus the anticipated vacancies for the next one year and some candidates also be included in the wait list. To this extent earlier order is modified.” 10. Having regard to the fact that the entire selection process has been completed by 17.1.2010, on which date, the select list has been put up on the notice board, the petitioners have not approached the Court in time and only after one of the candidates succeeded in a writ petition, filed the present writ petition. Having regard to the fact that the petitioners are aware that the minimum marks of 6 in viva voce test are prescribed only for STs and all other candidates who have applied under OC vacancies as per the second notification have to secure minimum 10 marks and having appeared for the examination and failed to secure the minimum marks cannot now turn around and question that they are entitled to be considered on securing minimum 8 marks as they belong to B.C. category. Further under Rule 4(d)(ii) of the Rules authorizes the High Court to prescribe the written and viva voce test for selection of candidates from among the confirmed members or approved probationers of: i) Categories 5 and 6 of Division-I and Categories 1 to 4 of Division- II of the Andhra Pradesh High Court Service; ii) Categories 1 to 6 of The Andhra Pradesh Judicial Ministerial Service; iii) Assistant Public Prosecutors, Senior Assistant Public Prosecutors, Additional Public Prosecutors Grade-II of A.P. State Prosecution Service; iv) Section Officers in the Law Department of the Secretariat; v) Section Officers in the Legislature Department; and vi) Managers of the Offices of the Advocate General; Government Pleaders; Public Prosecutors; Editor, I.L.R.” under the category of recruitment by transfer. Sub-rule (6) of Rule 6 also authorizes the High Court to prescribe necessary suitability test for recruitment by transfer. Therefore, the suitability test prescribed by the High Court under category of transfer, as per the notifications, a candidate should necessarily secure minimum qualifying marks of 40% & 30% and 10 & 6 marks under the O.C. and SC & ST categories respectively. Therefore, it is not necessary for us to go into the correctness of the interpretation put forth by the Division Bench of this Court and refer the matter to a Three Judges Bench as argued by the learned counsel for the petitioners. Suffice it to say that the petitioners have approached the Court after completion of selection process and as referred to above, there were no vacancies for the selected candidates pursuance to the two notifications referred to supra and supernumerary posts of Junior Civil Judges were created for a period of four months for enabling the selected candidates to undergo the training in the Judicial Academy and only after vacancies have arisen in December, the selected candidates were given posting orders. Further in view of issuance of notification for the year 2011, the present writ petition cannot be entertained on the ground of laches and the same is liable to be dismissed. Accordingly, the writ petition is dismissed. No costs. ________________ A. GOPAL REDDY, J. __________________ FEBRUARY 22, 2011 N.RAVI SHANKAR, J. Tsr. [1] (2000) 1 SCC 81 [2] (1999) 6 SCC 49