THE HON’BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No.1352 of 2011 ORDER:- (Per the Hon’ble Sri Justice N. Ravi Shankar) The point that is raised in this writ petition is whether the petitioner is entitled to be selected for a post of Civil Judge (Junior Division) in Andhra Pradesh State Judicial Service Rules 2007 (for short Rules) in any of the vacancies in the said posts notified for direct recruitment by the second respondent through its Notification No.29/2009-RC dated 28.01.2009. 2. The petitioner also made a mention about 15 vacancies notified in the said notification for recruitment by transfer and also another notification dated 16.02.2009 through which 21 more vacancies were notified by recruitment by transfer but we are not concerned with the said vacancies which are meant to be filled up by recruitment by transfer as the petitioner is not eligible for the same and as he has set up his claim only to vacancies notified for direct recruitment. Before we proceed further it must be stated here that Sri M.Pandu Ranga Rao the learned counsel for the petitioner stated across the Bar that he has no objection for disposal of this writ petition by this Division Bench of which my esteemed brother Hon’ble Sri Justice A. Gopal Reddy is a member. 3. The above point arises in the following circumstances. The petitioner in this writ petition is a practicing Advocate in Rajahmundry and he belongs to BC-D community. Pursuant to the notification dated 28.01.2009 referred to supra the petitioner applied for being selected as a Junior Civil Judge for the direct recruitment vacancies as a BC-D candidate. He appeared for the written test and also the oral interview (viva voce). He secured 47.5 marks in the written test and 8.2 marks in the oral interview and these are all admitted facts. 4. In the above referred to notification dated 28.01.2009 altogether 59 vacancies were notified for direct recruitment. Of them 28 vacancies (including 10 vacancies for women) and one vacancy meant for physically handicapped which is also reserved for woman were shown as open competition vacancies while four vacancies (including one reserved for woman) were shown as meant for BC-D group. We are not concerned with the other vacancies reserved for other categories as petitioner is making a claim only to one of the vacancies reserved for BC-D group. However in the course of arguments Sri M. Pandu Ranga Rao argued that the candidates selected for BC-D group vacancies secured highest marks and they should have been adjusted in open category vacancies and if they are so adjusted the petitioner would become eligible for a BC-D vacancy. We will consider that aspect also. 5. At the stage of admission itself we ordered notice to the Standing Counsel for the second respondent and directed her to file counter and also furnish the information regarding the candidates selected for BC-D group and their marks as the petitioner applied for the post as a BC-D group candidate. Accordingly the second respondent filed counter and the learned Standing Counsel also furnished the information regarding the names of the BC-D candidates selected and their marks. 6. It would be now relevant to refer to the rules which govern the recruitment. Rule 5(2) of the Rules speaks of qualifications for a person to be appointed as a Civil Judge (Junior Division). We are concerned herewith age factor as the petitioner satisfies the other requirements. Rule 5(2)(a)(ii) thereof says that a person to be appointed as a Civil Judge (Junior Division) by direct recruitment should not have completed the age of 35 years and this is meant for open competition vacancies. The first proviso to Rule 4(2)(a) then says that in the case of candidates belonging to Scheduled Castes and Scheduled Tribes and Backward Classes this age requirement of 35 years is relaxable by five years. We are not concerned with the age relaxation mentioned in the second proviso to the said Rule 5(2) as the petitioner has not made any claim under that proviso. 7. In the notification dated 28.01.2009 regarding the age requirement for open competition vacancies it is stated that the applicant should not have completed 35 years of age as on 01.02.2009 for direct recruitment but it is relaxable by five years in the case of Schedules Castes and Scheduled Tribes and Backward Classes consistent with the aforesaid first proviso to Rule 5(2)(a). 8. It may then be noted that regarding the criteria for scoring of marks in the written test and viva voce for selection the said requirement is mentioned in Rule 6(10) and the Proviso thereunder. It says that the written examination shall invariably carry 80 marks limiting the viva voce to remaining 20 marks. The Proviso then says that the candidate shall secure minimum qualifying mark of 40% for OC category, 35% for BC category and 30% for SC and ST category in the written examination and minimum qualifying marks of 10 for OC category, 8 for BC category and 6 for SC and ST category in the viva voce. In the present case the petitioner who applied for the post as a BC-D candidate secured 47.5 marks in the written examination and 8.2 marks in the viva voce and normally by reason of the above qualifying marks he becomes eligible for selection to the post as a BC-D candidate provided there are no other candidates in that category who have secured more marks than him. 9. The learned Standing Counsel produced the list of candidates belonging to BC-D group and their marks who were selected against open competition vacancies and also BC-D vacancies and that list is as follows. S.No. REGD. No. NAME OF THE CANDIDATE Gender & Group DOB Age MARKS ________________________ Written Oral Total 1 0021 JAYARAM REDDY KYASA MALE BC_D 10/08/1981 27 Yrs 59.00 12.80 71.80 2 0880 KIRAN MAHI MEDAK FEMALE BC-D 01/01/1977 32 Yrs 57.00 8.60 65.60 3 1082 SUJANA.K FEMALE BC-D 10/03/1970 38 Yrs 56.00 8.40 64.40 4 1077 PAVAN KUMAR CHALLA MALE BC-D 22/08/1985 23 Yrs 53.00 10.40 63.40 5 0039 SANDHYA RANI MEEGADA FEMALE BC-D 10/05/1970 38 Yrs 52.50 9.20 61.70 6 1138 RAMESH BOLEDDULA MALE BC-D 27/02/1977 31 Yrs 53.00 8.60 61.60 7 0154 SIRISHA BOORA FEMALE BC-D 21/05/1973 35 Yrs 52.00 8.60 60.60 8 0096 RAM PRASAD RAO DEVINENI MALE BC-D 29/03/1983 25 Yrs 51.00 9.40 60.40 9 0755 PALLAVI VOODI FEMALE BC-D 12/08/1982 26 Yrs 50.50 8.60 59.10 10 0517 HEMA LATHA PALLI FEMALE BC-D 06/07/1980 28 Yrs 49.00 8.20 57.20 11 0247 BABITHA MAJJI FEMALE BC-D 11/08/1975 33 Yrs 48.00 8.80 56.80 12 0156 THIRUMALA RAO DHULI MALE BC-D 10/06/1974 34 Yrs 47.50 8.20 55.70 We have extracted the above information upto the twelfth candidate who is the writ petitioner. According to the above information candidates at S.Nos.1 and 4 though belong to BC-D group were selected against OC vacancies as they are within the age limit of 35 years and also scored more than 10 marks in the viva voce which is a precondition apart from the minimum marks they have secured as per the criteria for selection of OC candidates. It may also be noted that candidates at S.Nos.2, 3, 5 and 6 were selected against BC vacancies as they failed to secure the minimum qualifying marks of 10 in viva voce but secured more than the minimum qualifying marks of 8 prescribed for BC-D candidates. It may then be noted that there are five other candidates from S.Nos.7 to 11 who also belong to BC-D group and who secured more than the marks secured by the petitioner who is at S.No.12 and they along with the writ petitioner were not selected. This information is also furnished in the counter filed by the second respondent wherein it has been pleaded that the denial of appointment to the petitioner is proper. 10. From the above table/information it is clear that the denial of appointment to the petitioner who applied for the post as a BC-D candidate is in our opinion proper. Sri Pandu Ranga Rao the learned counsel for the petitioner however contended that the candidates at S.Nos.2, 3, 5 and 6 by reason of their marks should have been selected for OC vacancies and in the resultant BC vacancies the petitioner should have been appointed along with other BC candidates as all of them irrespective of their ages are eligible to compete for OC vacancies also. This contention was not specifically raised in the pleadings in the writ petition but was argued by him across the Bar and hence it could not be met by the second respondent in the counter. However we will proceed to deal with this contention also treating it as a question of law which can be raised even in the absence of a pleading. In support of his above contention he relied upon two decisions of our Supreme Court one given in RAVINDER KUMAR vs. STATE OF HARYANA[1] and the other given in JITENDRA KUMAR SINGH vs. STATE OF U.P.[2]. 11. The principle laid down in RAVINDER KUMAR’s case (1 supra) that candidates belonging to Ex-servicemen belonging to BC-B category could be selected against the vacancies of Ex-servicemen belonging to general category and their appointments to Ex-servicemen general category cannot be rejected on the ground that they are over-aged. The principle laid down in JITENDRA KUMAR SINGH’s case (2 supra) is more clear and supports the contention of the petitioner’s counsel that all candidates belonging to OC category, BC categories and SC and ST categories are eligible for OC vacancies irrespective of their ages and that the candidates belonging to reserved groups cannot be ignored for OC vacancies on the ground that they were over-aged for OC vacancies even if they were otherwise eligible having scored the marks prescribed in the qualifying test. 12. The second decision pertains to recruitment to the posts of Sub- Inspectors in Civil Police in the State of Uttar Pradesh. The said recruitment was governed by U.P. Public Services (Reservation for Scheduled Castes and Scheduled Tribes and other Backward Classes) Act 1994. Section 3 of the said Act makes provision with regard to the reservation in favour of the above groups. Sub-section 6 of the said Section says that if a person belonging to any of the categories for which reservations are to be made gets selected on the basis of merit in an open competition with general candidates he shall not be adjusted against the vacancies reserved for such reserved category. The Supreme Court in Para-65 observed that the entire issue need not be decided on the general principles of law laid down in various judgments as the Court in that case was concerned with the interpretation of the aforesaid 1994 Act of State of U.P. and the Instructions dated 25.03.1994 and the G.O. dated 26.02.1999 issued thereunder. 13. In the above mentioned notification for the post of Sub-Inspectors in the State of U.P. age qualifications were prescribed for OC groups and age relaxation was given for the reserved groups as is done in the Rules for the posts of Civil Judges (Junior Division). It is seen that some of the reserved candidates though they secured marks which make them eligible for OC vacancies they were adjusted only against reserved groups vacancies on the ground that they were over aged for OC vacancies thus denying appointment to other reserved groups candidates though they became eligible for being adjusted against reserved vacancies. The Supreme Court in Para-77 of the judgment clearly held that all candidates irrespective of the category to which they belong and irrespective of the ages prescribed for OC vacancies and the relaxation given for reserved vacancies in respect of the age factor would become eligible for OC vacancies if they qualify for appointment to OC vacancies. 14. It must be now noted here that in Para-6 of the judgment in the second case referred to supra the selection criteria regarding the marks to be obtained in the written test and other physical tests for recruitment to the posts of Sub-Inspectors are mentioned and that all candidates irrespective of the category to which they belong have been subjected to the uniform selection criteria. The last sentence in that Para-6 reads “There were, however, no qualifying marks for the interview.” This makes all the difference for the present Civil Judges (Junior Division) recruitment and makes the above Supreme Court decision distinguishable both on facts and law. Further in Para-49 it was observed that the concessions and relaxations place the candidates on par with general category candidates and it is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates. 15. It should now be noted that in our State also Rule 22 of the Andhra Pradesh State and Subordinate Services Rules 1996 which provides for reservations to Scheduled Castes, Scheduled Tribes and Backward Classes says that the candidates belonging to the said groups should also be considered for open competition vacancies and this is made clear in the Proviso stipulated in Rule 22(2)(d) of the above Rules. In our present Rules also Rule 7 says that Rules 22 and 22-A of the A.P. State and Subordinate Services Rules 1996 shall apply to the Rules for providing reservations in direct recruitment. It should also be noted that Rule 25 of the Rules says that the A.P. State and Subordinate Services Rules 1996 shall apply to the present Rules i.e. the A.P. State Judicial Service Rules so far as they are not inconsistent with the said special rules. 16. Now as already referred to supra the proviso to Rule 6(10) of the present rules says that for being qualified for appointment a OC candidate should score a minimum qualifying mark of 40% in written test and minimum qualifying marks of 10 in the viva voce. Correspondingly for BC category candidates the minimum qualifying marks in the written test and viva voce are prescribed as 35 and 8 respectively. Likewise for SC and ST candidates the minimum qualifying marks are prescribed as 30 and 6 in written test and viva voce respectively. Thus in view of Rule 25 of the present Rules it follows that they prevail over the Rule 22 of the Andhra Pradesh State and Subordinate Services Rules 1996 regarding selection process pertaining to the qualifying marks in the written test and viva voce. 17. Accordingly from the above table it is seen that BC candidates shown at S.Nos.2, 3, 5 and 6 were selected against BC vacancies not on the ground that they were over aged for OC vacancies but since they failed to secure minimum 10 marks in the viva voce prescribed for the OC vacancies though they secured more than 40% prescribed for OC category in the written examination. It should also be noted that the above four candidates were selected against BC-D group vacancies consistent with the Rules. Thus the contention of Sri Pandu Ranga Rao that the above four candidates should have been selected against OC vacancies on the basis of the decision given in JITENDRA KUMAR SINGH’s case (2 supra) cannot be accepted as the said decision is distinguishable on facts and the rules. 18. Apart from the above legal position it should also be noted that the petitioner is shown at S.No.12 in the table of candidates. The said table shows that even on merits above the petitioner there are five candidates belonging to BC-D group who secured more marks than him but who were not selected. This is also a minus point for the petitioner on the merits of his claim. 19. For the aforesaid reasons the point is decided against the petitioner and this writ petition is dismissed. No costs. ______________________ A. GOPAL REDDY, J ______________________ N. RAVI SHANKAR, J 14th March 2011 CVRK [1] (2010) 5 SCC 136 [2] (2010) 3 SCC 119