*THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY + WRIT PETITION Nos.14130 of 2010 and batch %24-3-2011 # Vikram Simha Reddy. … Petitioner Vs. $The Government of A.P., reptd., by its District Collector, Kurnool, Kurnool District and others. … Respondents ! Counsel for the petitioner: Sri K.V.N.Bhupal. ^ Counsel for Respondents: G.P. for Civil Supplies R1 to R.4. Ms.Naga Niyatha for R.5. < Gist: > Head Note: ? Cases referred: 1) (1995) 3 SCC 486 2) 1986(Supp) SCC 285 3) AIR 1987 SC 454 4) AIR 1981 SC 1777 5) AIR 1980 SC 1975 6) AIR 1981 SC 487 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY THURSDAY, THE TWENTY FOURTH DAY OF MARCH, TWO THOUSAND ELEVEN WRIT PETITION Nos.14130, 14131, 14136, 16372, 16867, 16739, 6852, 14471, 14881, 15160, 15489, 15562, 15563, 15567, 16456, 16699, 16879, 17004, 17027, 17033, 17054, 17131, 18339, 18360, 18361, 18385, 18745, 19741, 20106, 20169, 20618, 20623, 20687, 20912, 21306, 21319, 12361 of 2010 and 1854, 1949, 308, 312, 2006 of 2011 WRIT PETITION Nos.14130 of 2010: Between: Vikram Simha Reddy. … Petitioner And The Government of A.P., reptd., by its District Collector, Kurnool, Kurnool District and others. … Respondents Counsel for the petitioners: (W.P.Nos.14130, 14131, 14136, 16372, 16739, 14881, 15160, 15489, 15562, 15563, 15567, 16456, 16699, 17004, 17027, 17033, 18339, 18360, 18361, 18385, 18745, 20618, 20623, 20687, 20912, 21306, 21319 of 2010) Sri K.V.N.Bhupal (WP.No.16867, 17054, 19741, 20106, 20169 of 2010): Sri K.V.Raghuveer. (WP No.1854, 1949, 308, 312 and 2006 of 2011): Sri Gangisetty Rajeswararao. WP No.6852 of 2010 Sri Raja Reddy Koneti. W.P.No.14471/2010 Sri V.Venkatamayur W.P.No.16879/2010 Sri Raju Gujjarlapudi W.P.No.17131/2010 Smt.K.Hemalatha W.P.No.12361 of 2010 Sri O.Manohar Reddy Counsel for the Official Respondents: G.P. for Civil Supplies For private Respondents: WP Nos.14130, 14131, 14136/2010 Ms.N.Niyatha W.P.Nos.16372/2010 Sri Vinay Kamisetty W.P.No.16867/2010 Sri D.L.Pandu W.P.No.16739/2010 Sri N.Ravi Prasad W.P.N.14881/2010 Sri Vijay Bhaskar Moola W.P.No.15160, 17131, 19741/2010 Sri S.Venkatasubba Rao W.P.No.15489/2010 Sri O.Manohar Reddy W.P.No.15562, 15563/2010 Sri J.Dileep Kumar W.P.No.15567/2010 Sri G.Venkateswarlu W.P.No.16456/2010 Sri P.Nagendra Reddy W.P.No.16699/2010 Sri V.V. Satish W.P.No.16879/2010 Sri K.Jaganmohan Reddy W.P.No.17004, 17033, 17054/2010 Sri V.V. Anil Kumar W.P.No.17027, 18339, 18361, 18745/2010 Sri S.Nageswar Reddy W.P.No.18360/2010 Sri S.Dushyanth Reddy & Sri K.Srinivasa Reddy W.P.No.18385/2010 Sri J.Janakiram Reddy W.P.No.20106/2010 Sri J.CH.Y.Narasimham W.P.No.20687, 20912, 21306, 21319/2010 Sri G.Purushotham Reddy W.P.No.12361 of 2010 Sri M.Subba Reddy This Court made the following: COMMON JUDGMENT:- In this batch of Writ Petitions, orders appointing fair price shop dealers in the two Revenue Divisions of Kurnool District, viz., Nandyal and Kurnool, are called in question. As common issues are involved in all these Writ Petitions, they are heard and being disposed of by this common Judgment. In pursuance of the individual notifications issued by the Revenue Divisional Officers concerned (hereinafter referred to as “the Appointing Authorities”), the petitioners applied for appointment as fair price shop dealers. By the time of their making applications, many of the petitioners were working as fair price shop dealers on temporary basis. Some temporary dealers filed Writ Petitions, viz., Writ Petition No.5458 of 2010 and batch, questioning the respective individual notifications pertaining to the shops with respect to which they held temporary authorizations. The said batch was dismissed by a learned single Judge of this Court by order dated 10-3-2010. The temporary dealers, feeling aggrieved by order dated 10-3-2010 of the learned single Judge in Writ Petition No.5458 of 2010 and batch dismissing their Writ Petitions, filed Writ Appeal No.221 of 2010 and batch. The Division Bench, while affirming the reasoning of the learned single Judge that the temporary dealers have no right to question the notifications issued for making permanent appointments, placed on record the submission of the learned Government Pleader for Civil Supplies that while replacing the temporary dealers, the appointing authorities will not indulge in pick and choose methods and that all the temporary dealers will be replaced by regular dealers. The Division Bench also made it clear that dismissal of the writ appeals should not work as an impediment for the appellants to prosecute their causes against their selections and that the order was limited to the extent of basic notification only and does not deal with any final selection. Following dismissal of the Writ Petitions and Writ Appeals referred to above, the appointing authorities went ahead with the selection process. At this juncture, it is of relevance to refer to the background leading to the initiation of appointment process. The Collector, Civil Supplies, Kurnool, issued Circular bearing No.Rc.CS.2/390/2009, dated 4-11- 2009, wherein she has stated that a number of posts of fair price shop dealers fell vacant and incharge arrangements are being continued without filling up those vacancies on permanent basis resulting in affecting the fair distribution of essential commodities. Accordingly, she has instructed the appointing authorities to take immediate action to fill up the posts of fair price shop dealers in their respective divisions. She has directed the appointing authorities to follow the detailed guidelines for selection and appointment of fair price shop dealers contained in the Andhra Pradesh Public Distribution System Control Order, 2001 (for short “the Control Order, 2001”). The Collector, Civil Supplies, however, referred to some “important guidelines”, which are as under: “1. All permanent vacancies of a F.P. shop dealer shall be notified by the appointing authority (RDO) and invite the applications for writing examination and walk in interview along with original certificates on a specified day. 2. The question paper for the written examination will be issued by the District Administration. 3. The walk in interview is only for physical appearance of the person and his/her activities to run the F.P. Shop. No marks will be set apart separately for the interview. 4. Wide publicity of the notification shall be issued duly affixing the notification at important places. 5. No punishment or involvement of cases under EC Act or under any other criminal activity shall be to the credit of the applicant. 6. The minimum general education qualification i.e., a pass in 10th class is required. 7. The minimum age for applying for the post shall be 18 years and the maximum is 40 years. 8. The reservations as prescribed shall be observed while making appointment. The appointing authority shall maintain the percentage of reservations prescribed by the Government at Divisional Level on overall basis of the strength of the reservations provided treating the entire Revenue Division as a Unit. 9. Preference shall be given to a resident of Revenue village or Hamlet in which the shop is located besides the preferences available to families of Freedom fighters, DWCRA groups, thrift groups”. (Emphasis supplied). Purporting to follow the above noted circular of the Collector, Civil Supplies, the appointing authorities issued notifications shop wise, wherein it is, inter alia, indicated that for all the applicants oral and written tests on fundamental aspects will be held and the time and date of the tests will be notified in the offices of the Tahsildars. At the hearing it has come out that more than 1600 candidates applied in pursuance of the notifications and about 1300 applicants appeared for written tests in Kurnool Division alone. No information in this regard is placed before the Court with regard to Nandyal Division. The learned Government Pleader for Civil Supplies placed before this Court letter No.Rc.B.2715/2010, dated 8-2-2011, addressed to him by the Revenue Divisional Officer, Kurnool, wherein it is stated that in respect of the fair price shop vacancies in Kurnool Division, written examination was held on 21-3- 2010; the question paper was prepared for 50 marks and 18 marks were prescribed as cut off marks; and 50 marks were allocated for the interview. He has further stated that invigilation work and evaluation of answer sheets were done by the teachers of the recognized school viz., Montessori English Medium High School, A- Camp, Kurnool. It is not in dispute that a similar procedure was adopted by the appointing authority of the Nandyal Division as well. After completion of the selection process, appointment orders were issued to the candidates, who were selected. All the petitioners herein were unsuccessful in the selection process and have filed these Writ Petitions feeling aggrieved by the appointment of private respondents as fair price shop dealers. I have heard Sri K.V.N. Bhupal, Sri K.V.Raghuveer, Smt.K.Hemalatha and Sri Koneti Raja Reddy, learned counsel appearing for the petitioners in their respective Writ Petitions; the learned Government Pleader for Civil Supplies appearing for the official respondents; Ms.Naga Niyatha, Sri D.L.Pandu, and Sri P.Nagendra Reddy, learned counsel appearing for some of the private respondents. The substantive ground of attack made by all the learned counsel for the petitioners in common is against the procedure adopted by the appointing authorities in conducting the selection process. The learned counsel submitted that the procedure prescribed for selection and appointment of fair price shop dealers does not envisage written test. They have referred to and relied upon G.O.Ms.No.52, dated 18-12-2008, in support of this submission. The learned counsel also submitted that the appointing authorities failed to follow proper method in fixing reservation, leading to arbitrariness in picking and choosing the shops for reservation. The learned counsel further submitted that even if holding of written test is held valid, allocating 50 marks for interview has led to patent arbitrariness and vitiated the process of selection. Opposing the above contentions, the learned Government Pleader for Civil Supplies submitted that though the extant guidelines do not provide for written test, on the directions issued by the Collector, Civil Supplies, Kurnool, in Circular dated 4-11-2009, the appointing authorities conducted the written tests; and that allocation of 50 marks for the interview is not arbitrary. He further submitted that the Writ Petitions filed bypassing the remedy of alternative remedy are not maintainable. The learned Government Pleader and Ms.Naga Niyatha, appearing for some of the private respondents, strongly urged that having appeared for written examinations and interviews, without any demur and taking their chances, the petitioners have waived their right to question the selection process. In support of this submission, Ms.Naga Niyatha referred to and relied upon the judgments of the Supreme Court in Madan Lal Vs. State of Jammu & Kashmir[1] and Om Prakash Shukla Vs. Akhilesh Kumar Shukla[2], Ashok Kumar Yadav Vs. State of Haryana[3], Lila Dhar Vs. State of Rajasthan[4] and Ajay Hasia Vs. Khalid Mujib Sehravardi[5]. Having regard to the respective submissions of the learned counsel for the parties, the following points arise for adjudication: 1) Whether the selection process followed by the appointing authorities is valid and proper; 2) Whether the petitioners are entitled to question the selection process; and 3) Whether the appointing authorities have acted correctly in fixing reservations. Re Point No.1: With a view to make available essential commodities at affordable prices to certain sections of society, the State Government evolved Public Distribution System. In exercise of the power delegated to it by the Government of India under Section 3 of the Essential Commodities Act, 1955 (for short “the Act”), the State Government has been issuing Control Orders from time to time. The Andhra Pradesh Scheduled Commodities (Regulation of Distribution by Card System) Order, 1973, which governed the field of public distribution for almost three decades, was superseded by the Andhra Pradesh State Public Distribution System Control Order, 2001, which was notified by G.O.Ms.No.16, Food, Civil Supplies and Consumer Affairs (CS.I) Department, dated 6-4-2002. In order to regulate the selection and appointment of fair price shop dealers functioning under the said Control Order, the State Government issued G.O.Ms.No.53, Consumer Affairs, Food and Civil Supplies (CS.I) Department, dated 6-10-2003. Annexure to this G.O., contains guidelines for selection and appointment of fair price shop dealers. The notable aspects of these guidelines are that all vacancies of fair price shops shall be notified on the first day of every month by the appointing authority and invite the applicants for walk in interviews along with original certificates on a specified date at least after ten clear days time of the notification; the results shall be announced on the next day of the interview; there shall be no postponement of the date by the appointing authorities; all vacancies of fair price shops shall be notified once in a month; the notification inviting applications shall specifically mention whether the fair price shop concerned is meant for Scheduled Castes/Scheduled Tribes/Backward Classes/Physically Handicapped/Woman; selection shall be made on the basis of interviews conducted by the appointing authority purely on merit to be determined on the basis of the minimum general educational qualifications of the candidates; and antecedents of the candidates shall be verified. It also prescribed that 10th class shall be the minimum general educational qualification and candidates passing higher educational qualifications shall be treated equally for the purpose of appointment; and if candidates with the said minimum general educational qualifications are not available, candidates possessing lesser educational qualifications, which shall not be less than a pass in the 5th class, if apply, may be considered for appointment. The G.O., prescribed reservations at 15% for the Scheduled Castes; 6% for the Scheduled Tribes; 3% for the Physically Handicapped and 23% for the Backward Classes. It also provided for 30% reservation for women, out of which 1% shall be reserved to the widows of Ex-Servicemen; and the reservations shall be maintained at Divisional/Circle level on overall basis of the strength of the reservations, treating the entire Revenue Division/Circle as a unit. The Control Order, 2001 was superseded by the Andhra Pradesh Public Distribution System (Control) Order, 2008 (for short “the Control Order, 2008”). The State Government has, therefore, felt the necessity of issuing revised guidelines for selection and appointment of fair price shop dealers. Accordingly, it has issued G.O.Ms.No.52, dated 18-12-2008. Under this G.O., the intervals at which the vacancies are to be notified, the method of selection through walk in interviews, announcement of results of the interview on the next day of interview, the general educational qualifications etc., remain the same as was prescribed in G.O.Ms.No.53, dated 6-10-2003. It is noteworthy that in Guideline No.1.4 of the Annexure to the said G.O., it is provided that the Appointing Authority should notify all the fair price shop vacancies as per roster; there should be proportionate allocation of category of vacancy of the unit; and percentage of reservations should be filled up scrupulously. The above noted guidelines would thus make it evident that a specific method has been envisaged for selection and appointment of fair price shop dealers. The learned Government Pleader for Civil Supplies candidly admitted that the guidelines contained in the G.Os., referred to above have statutory force as they are traceable to the delegated power of the State Government under Section 3(2) (d) read with Section 5 of the Act under which the Central Government can delegate any of its powers under Section 3 to the State Government. The learned Government Pleader has, therefore, conceded that these guidelines are enforceable in a Court of law. Concededly, the appointing authorities have not followed the procedure prescribed in the guidelines for selection and appointment of the private respondents. The only reason assigned by them for deviation from this procedure is the Circular issued by the Collector, Civil Supplies, which was referred to hereinbefore. Interestingly, the Collector in her Circular while observing that guidelines for selection and appointment of fair price shop dealers were issued under the Control Order 2001, referred to some purported important guidelines, which were reproduced hereinabove. The first guideline, which was referred to in the Circular, deals with prescribing written examination and walk in interview. It is not the pleaded case of the official respondents that any of the guidelines issued so far prescribed such written examination. Further more, while the prescribed guidelines provided for selection on the basis of the general educational qualifications and interview, the Collector in her Circular has noted in the purported Guideline No.3 that no marks will be set apart separately for the interview. It thus appears to my mind that in the name of the guidelines in existence under the Control Order 2001, the Collector, Civil Supplies, has prescribed her own guidelines, which are in derogation of the statutory guidelines issued under both the Control Orders of 2001 and 2008. Another serious lapse on the part of the Collector, Civil Supplies, lies in her not noticing the fact that by the time she issued Circular, dated 4-11-2009, the Control Order, 2001 was already superseded by the Control Order, 2008, which was notified by G.O.Ms.No.30, Consumer Affairs, Food and Civil Supplies (CS.I) Department, dated 8-8-2008, though the revised guidelines issued under G.O.Ms.No.52, dated 18-12-2008, did not materially alter the procedure relating to selection and appointment of fair price shop dealers from that envisaged under G.O.Ms.No.53, dated 16-10-2003 issued under the Control Order, 2001. Indeed, one of the temporary dealers Smt. G.Naseema Banu filed Writ Petition No.7253 of 2010 questioning the notification issued in respect of fair price shop No.147 of Kurnool Urban on the plea that the method of conducting written test is not prescribed by the Control Order, 2008 or the guidelines for selection and appointment of fair price shop dealers issued in G.O.Ms.No.52, Consumer Affairs, Food and Civil Supplies (CS.I) Department, dated 18-12-2008; and that she may be permitted to appear for the interview. The said Writ Petition was disposed of by a learned single Judge by order dated 1-4-2010 with the following observations: “The Andhra Pradesh Public Distribution System (Control) Order, 2008 or the guidelines for selection and appointment of FPS dealers issued in G.O.Ms. No.52, dated 18-12-2008, do not contemplate nor empower the appointing authority to conduct written/screening test before conducting interviews. No such Government order is brought to the notice of this Court and, therefore, any denial of opportunity to petitioner for being considered to FPS dealership would be unfair”. On the above premise, this Court directed the appointing authority to interview the petitioner for fair price shop No.147 of Kurnool Urban. While the Circular of the Collector, Civil Supplies, was contrary to the prescribed guidelines, as noted above, the appointing authorities failed to follow even the guidelines contained in the Collector’s circular. Though in Guideline No.3 the Collector specifically directed that no marks will be set apart separately for the interview, the appointing authorities have earmarked 50% marks for the interview. In order to know how the appointing authorities have awarded marks in the written tests and the interviews, this Court has directed the learned Government Pleader for Civil Supplies to produce the statement of marks awarded in at least one of the two Revenue Divisions. Accordingly, the learned Government Pleader produced the statement pertaining to Kurnool Revenue Division. A cursory glance of the statement would reveal that in one case pertaining to Shop No.15-A of Kodumur (Serial No.352), the candidate who has got 19 marks in the written test was awarded 41 marks in the interview. In respect of fair price shop No.3 of Dhone (Serial No.504) the candidate who has got 27 marks in the written test was awarded 37 marks in the interview. In respect of Shop No.38 of Dharmavaram (Serial No.660) the candidate who has got 34 marks in the written test was awarded 44 marks in the interview. Similarly, for Shop No.36 of Hussainapuram (Serial No.749) the candidate who has got 24 marks in the written test was awarded 40 marks in the interview. In respect of Shop No.8-A of Bapanadoddi (Serial No.838) the candidate who has got 34 marks in the written test was awarded 44 marks in the interview. In respect of fair price shop No.122 (Serial No.873) of Katarukonda, the candidate who has got 30.5 marks in the written test was awarded 43 marks in the interview. This random reference to the marks is made only to note that some of the candidates were awarded high marks in the interview disproportionate to their performance in the written test. Be that as it may, from the discussion undertaken above, I have no hesitation to hold that the circular issued by the Collector, Civil Supplies, does not accord with the prescribed guidelines; and that the procedure followed by the appointing authorities in the selection and appointment of fair price shop dealers contravenes the guidelines issued by the State Government under the Control Orders 2001 and 2008 and also the guidelines contained in Circular dated 4-11-2009 of the Collector, Civil Supplies. Re Point No.2:- Some of the petitioners in this batch of Writ Petitions have earlier filed Writ Petitions questioning the individual notifications, while some others have not. However, all the petitioners except the petitioner in Writ Petition No.6852 of 2010, who was rendered ineligible to apply as the fair price shop concern was earmarked for a reserved category, have appeared for written test and interview. It is of significance to note that the batch of Writ Petitions, out of which Writ Appeal No.221 of 2010 and batch arose, was filed by the temporary dealers by questioning the individual notifications on the ground that the attempt to fill up the vacancies by considering the claims of other eligible persons ignoring their continuance as temporary dealers and without making them permanent as illegal and arbitrary. In that batch of cases, the question of legality and validity of the method of selection was neither raised nor considered by this Court. As noticed hereinbefore, the Division Bench, while dismissing the Writ Appeals by its judgment dated 12-07-2010, made it clear that dismissal of the Writ Appeals should not work as an impediment for the appellants to prosecute their causes against the selections. Ms. Naga Niyatha, learned counsel for some of the contesting respondents, placed strong reliance on the judgments of the Supreme Court in Madan Lal and Om Prakash Shukla (1 and 2 supra) to buttress her contention that the petitioners, having appeared for the written test and interview and taken their chances, have waived their right to question the method of selection. In Madan Lal (1 supra) the Public Service Commission (for short, “the Commission”) of State of Jammu and Kashmir issued advertisement inviting applications for appointment to the posts of Munsif in the State of Jammu and Kashmir. The Commission conducted written examination in July and August, 1993 and issued notification dated 27.04.1994 announcing the names of the persons, who have qualified for viva voce test. The qualified candidates included the petitioners in the case. The Commission conducted the viva voce test as per Rule 10 of the Jammu and Kashmir Civil Service (Judicial) Recruitment Rules of 1967 and on the request of the Commission, the Chief Justice of the High Court nominated a Judge to act as an expert on the Commission for the purpose of conducting viva voce test. The viva voce test was conducted in accordance with the said rule. The Chairman of the Commission and one member could not participate in the viva voce test on the ground that one of the candidates selected as per the result of the written test was the daughter of the Chairman of the Commission and daughter-in-law of one of the Commission’s member. The persons, who failed to get selected after viva voce test, filed Writ Petitions in the Supreme Court under Article 32 of the Constitution of India seeking quashing of the viva voce test as being invalid, arbitrary and against the Principles of Natural Justice and for quashing the candidature of respondent Nos.3 and 13 therein. A further direction was sought for to declare the result of the selection on the basis of the written test of the candidates alone and in the alternative to conduct fresh viva voce test after removing defects in it. The main plea on which the said reliefs were sought was that the viva voce test was so manipulated that only preferred candidates, by inflating their marks in the viva voce test, were included in the select list. Placing reliance on Om Prakash Shukla (2 supra), the Apex Court held that the petitioners, having taken a chance by appearing in the oral interview, cannot turn round and question