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TMI Blog2009 (4) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... of an examination for the purpose of shortlisting of the candidates and the second being holding of the main examination followed by interview. 4. Both for preliminary examination as also the main examination, two criteria used to be adopted; one for the general category candidates and other for the reserved category candidates. 5. Validity of the said procedure came up for consideration before a Division Bench of the Andhra Pradesh High Court as far back in the year 1984 in S. Jafeer Saheb v. State of Andhra Pradesh [1985 (2) APLJ 380]. Indisputably, a similar question came up for consideration again in G. Raju v. Government of A.P. rep. by its Secretary [Writ Petition No. 24247 of 2004 decided on 31.12.2004] In S. Jafeer Saheb (supra), the contention of the State was that the reservation of posts used to be made while admitting the candidates for examination itself and not in the final selection in the ratio of 1:15. The question which, thus, posed, was as to whether admission of candidates for the main examination by applying compensatory preference even at the stage of admission in the main examination is violative of Articles 14 and 16 of the Constitution of India. Taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for a pass in the H.S.C. Examination or Intermediate Examinat6ion or BA Degree Examination, because they are eligibility test and not proficiency test." 6. Indisputably, pursuant to or in furtherance of the said judgment of the High Court dated 28.12.1984, the State of Andhra Pradesh issued fresh G.O.Ms. No. 570 dated 31.12.1997, providing that the candidates who had applied for Group - I services would be shortlisted based on a preliminary examination (Screening Test) in the ratio of 1:50 to the total number of vacancies available at the material time irrespective of community, the relevant portions whereof read as under: "…The number of candidates to be admitted to the Written examination (Convention Type) would be 50 (fifty) times to the total number of vacancies available at material time irrespective of communities. 3. The papers except paper 2, i.e., General English may be answered in English or Telugu or Urdu chosen by the candidates. However, a candidate is not permitted to write part of the paper in English and part of it in Telugu. 4. The paper on General English is a qualifying one and the standard of this paper is that of S.S.C. The minimum qualifying ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dred and Twenty only) through I.P.O. Otherwise such applications will not be considered and no correspondence on this will be entertained. 4. Reservation for local candidates is not applicable as per concerned Departmental Special Rules, except Post Code - 8, i.e., AAO in AP State Audit Service. 5. Reservation and eligibility in terms of General Rule 22 & 22-A of A.P. State and Subordinate Service Rules are applicable. *** *** *** 10. The Reservation to Women will apply as per General Rules. For P.C. No. 066, women candidates are not eligible." Relaxation of age was granted for the SC/ST and BCs candidates by five years. The reserved categories of candidates were exempted from payment of fees. 9. Pursuant to or in furtherance of the said notification, 1,68,000/- candidates applied. A preliminary examination was held for all the candidates. Having regard to the ratio of the number of candidates to be admitted for main examination being 1: 50, 9,800 candidates were shortlisted to take the main examination. 10. Respondents herein appeared at the said preliminary examination without any demur whatsoever. They, however, having not been shortlisted filed an original application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) The impugned judgment would be detrimental to the interests of the meritorious candidates belonging to the reserved category. (iv) The writ petitioners - respondents having failed to qualify in the preliminary examination, are estopped and precluded from questioning the validity of GOMs No. 570 or the notification dated 27.12.2007 issued by the appellant - Commission. (v) Reservation for women and physically handicapped persons being an incident of horizontal reservation and not a vertical reservation, the impugned judgment cannot be sustained. 13. Mr. P.P. Rao, learned senior counsel appearing on behalf of the respondents, however, while conceding that the writ petitioners - respondents cannot claim any right of reservation and no writ of mandamus can be issued, contended: (i) As the Constitution contemplates upliftment of weaker sections by providing a percentage of seats for employment in the State and having regard to the fact that both clauses (1) and (4) of Article 16 of the Constitution of India provide for valid classification, the impugned judgment should not be interfered with. (ii) Judging of the merit of the candidates having regard to the provisions of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State has the legislative competence to frame rules, indisputably, it can issue governmental orders in exercise of its power under Article 162 of the Constitution of India. It adopted one procedure. It was held to be ultra vires by the Andhra Pradesh High Court in S. Jafeer Saheb (supra). It attained finality. The State amended the procedure in the light of the said decision by GOMs No. 570 dated 31.12.1997. No new policy was laid down which can be said to be contrary to or inconsistent with the decision of the Andhra Pradesh High Court in S. Jafeer Saheb (supra). A notification containing similar provisions issued by the Andhra Pradesh Public Service Commission in 2003 was questioned. It may be true that the validity of the GOMs itself was not questioned but if the terms of the notification were held to be unconstitutional, GOMs could have also been declared as such. 16. The Division Bench of the High Court indisputably was bound by the said decision. It, however, proceeded to examine the constitutionality of the GOMs dated 31.12.1997 and the notification dated 27.12.2007 inter alia on the premise that the validity of the said GOM and the notification was not tested on the to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces and the Rule of reservation in favour of local candidates where they are applicable." 20. The State of Andhra Pradesh in exercise of its power conferred upon it by the proviso appended to Article 309 of the Constitution of India framed rules known as the Andhra Pradesh State and Subordinate Service Rules, 1996. Rules 22 and 22-A thereof indisputably provide for reservation for appointments to a service, class or category in favour of Scheduled Castes, Scheduled Tribes, Backward Classes, women, physically handicapped, meritorious sportsmen, ex-servicemen, etc. Special rules and adhoc rules have also been made for reservation of women by way of Rule 22-A thereof, stating: "22-A. Women reservation in appointment: Notwithstanding anything contained in these rules or special rules or Adhoc Rules: (1) In the matter of direct recruitment to posts for which women are better suited than men, preference shall be given to women: Provided that such absolute preference to women shall not result in total exclusion of men in any category of posts. (2) In the matter of direct recruitment to posts for which women and men are equally suited, there shall be reservation to women to an exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of the relaxation contemplated by Rule 13-AA and the impeached orders. Proipotion to upper division from lower division is governed by the rule of seniority subject only to passing of the qualified test. The temporary relaxation of test qualification made in favour of Scheduled Castes and scheduled tribes is warranted by their inadequate representation in the services and their overall backwardness. The classification of the members of the Scheduled Castes and scheduled tribes already in service made under Rule 13-AA and the challenged orders for exempting them for a temporary period from passing special tests are within the purview of constitutional mandate under Article 335 in consideration of they claims to redress imbalance in public service and to bring about parity in all communities in public services." 22. How the Commission would judge the merit of the candidates is its function. Unless the procedure adopted by it is held to be arbitrary or against the known principles of fair play, the superior courts would not ordinarily interfere therewith. The State framed Rules in the light of the decision of the High Court in S. Jafeer Saheb (supra). Per se, it did not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qualified for appearing in the Main Examination. In other words, where candidates belonging to the SCs and STs numbering 15 times the total vacancies reserved for them are not available then the Service Commission has to go down further and cut off 5% of the marks from the lowest of the range prescribed for general candidates and then declare as eligible the SC and ST candidates who secured 5% less than the lowest range fixed by PSC for general candidates so as to enable them to appear for the Main Examination. The candidates who thus obtain qualifying marks are eligible to appear and write the Main Examination. The respective proportion of 1:3 or as may be prescribed and candidates who qualified in the Main Examination will be called by the Commission, in their discretion, for interview. The Commission shall award marks to each candidate interviewed by them, having regard to their character, personality, address, physique and knowledge of Rajasthani culture as is in vogue as per rules. However, for selection to the Rajasthan Police Service, candidates having 'C' Certificate of NCC will be given preference. The marks so awarded shall be added to the marks obtained in the Main Exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly not be allowed to be questioned. The proviso appended to Article 335 of the Constitution, to which our attention has been drawn by Mr. Rao, cannot be said to have any application whatsoever in this case. Lowering of marks for the candidates belonging to the reserved candidates is not a constitutional mandate at the threshold. It is permissible only for the purpose of promotion. Those who possess the basic eligibility would be entitled to appear at the main examination. While doing so, in regard to General English whereas the minimum qualifying marks are 40% for OCs, it would be 35% for BCs and 30% for SC/STs and physically handicapped persons. However, those marks were not to be counted for ranking. We have noticed hereinbefore, that candidates belonging to the reserved categories as specified in the notification are not required to pay any fee. Their age is relaxed upto five years. It is, therefore, not correct to contend that what is given by one hand is sought to be taken by another. They can, thus, appear in the examination for a number of times. Indisputably, the right conferred upon the writ-petitioners - respondents in terms of Rules 22 and 22-A of the Andhra Pradesh St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nate Service Rules, 1996 and the rule of reservation in favour of local candidates. 29. Strong reliance has been placed by Mr. Rao on Sangram Singh v. Election Tribunal, Kotah, Bhurey Lal Baya [(1955) 2 SCR 1] wherein Vivian Bose. J., stated as under: "Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it." The said observation was made keeping in view the concept of justice. By reason of providing for a preliminary examination, the right of the reserved category candidates has not been taken away. The means cannot be allowed to defeat the ends which the constitutional scheme seeks to achieve. 30. Reliance has also been placed by Mr. Rao on Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and Others [(1981) 1 SCC 246] wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005, page 907] 34. Indisputably, when the said words were used, it took its clue from S. Jafeer Saheb (supra). The expression might have been loosely used but its purport and object had been understood by candidates including the writ petitioners. The provisions for holding the preliminary examination were for the purpose of maintaining a basic standard. The High Court has directed deletion of the said words. 35. Mr. P.P. Rao has relied upon the following paragraph of the decision of this Court in N.M. Thomas (supra): "43. Scheduled Castes and scheduled tribes are not a caste within the ordinary meaning of caste. In Bhaiyalal v. Harikishan Singh12 this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a scheduled caste and his declaration that he belonged to the Chamar caste which was a scheduled caste could not be premitted because of the provisions contained in Article 341. No court can come to a finding that any caste or any tribe is a scheduled caste or scheduled tribe. Scheduled caste is a caste as notified under Article 366(25). A notification is issued by the President under Article 341 as a result of an ela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the appeal at the instance of one of the respondents may set aside the entire judgment although another respondent had not appealed thereagainst. 41. The Commission had undertaken the task of holding preliminary examination. It had followed the procedure laid down in its notification issued in this behalf and the GOMs issued by the State. It, therefore, could maintain a writ petition. 42. Mr. Rao, however, submits that in order to maintain an appeal, the Commission should have been a 'person aggrieved'. Reliance in this behalf has been placed on Thammanna v. K. Veera Reddy Ors. [(1980) 4 SCC 62 : (1981) 1 SCR 73] wherein in the context of the provisions of Section 116C of the Representation of People Act, 1951, it was held: "14…As a general proposition, therefore, it may safely be stated that before a person is entitled to maintain an appeal under Section 116-C, all the conditions mentioned below, must be satisfied: (1) that the subject-matter of the appeal is a conclusive determination by the High Court of the rights with regard to all or any of the matters in controversy, between the parties in the election petition, (2) that the person seeking to appeal has be ..... 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