Andhra HC (Pre-Telangana)
G. Swarna Gouri And Ors. vs Government Of Andhra Pradesh, G.A.D. ... on 2 March, 2006
Equivalent citations: 2006(2)ALT664
Author: J. Chelameswar
Bench: J. Chelameswar
ORDER J. Chelameswar, J.
1. These ten writ petitions raise questions, which are interconnected and arose out of various orders of the Andhra Pradesh Administrative Tribunal in various O.As.
2. The services under the State of Andhra Pradesh are broadly classified into State Services and Subordinate Services. The services of the employees falling under the category of State Service are being utilized in 19 Departments of the State. Such services are governed by certain common rules and also special rules in certain cases. The details which may not be necessary for the present purpose except to state that in each of the service invariably a provision is made stipulating a minimum percentage of personnel that must be recruited by way of direct recruitment from the open market and others by way of either promotion or recruitment by transfer. The various posts falling under various State Services are once again classified as Group-I, Group-II etc. In the instant case we are concerned with the recruitment to Group-I posts.
3. Under Article 315 of the Constitution, a Service Commission for each State is created. Under Article 320, the Service Commission of the State is mandated to conduct examinations for the appointment to the services of the State as and when such a request is made by the State.
4. The State of Andhra Pradesh made the last recruitment from the open market to Group-I posts in the year 1998. Thereafter there was no recruitment for quite some time. In the year2003, the State of Andhra Pradesh decided to make recruitment to Group-I services and requested the Service Commission to undertake the process. The Service Commission issued Notification No. 21/2003 dated 21-11-2003 inviting applications from eligible candidates in the prescribed form on or before 20-12-2003. The notification indicated that the recruitment process is meant for filling up 301 fresh vacancies and 7 backlog vacancies of S.Cs. and S.Ts., in six categories of posts. They are:
1. Deputy Collectors in A.P. Civil Service (Executive Branch)
2. Commercial Tax officers in A.P. Commercial Tax Service
3. Deputy Superintendent of Police (Category-2) in A.P. Police Service.
4. Regional Transport Officers in the A.P. Transport Service
5. Assistant Prohibition and Excise Superintendents in A.P. Excise Service.
6. Mandal Parishad Development Officer in A.P. Panchayat Raj Rural Development Service.
5. The notification invited applications only from graduates who are 18 and 33 years of age. With reference to the posts under categories 3 and 5 mentioned above i.e., Deputy Superintendent of Police and Assistant Prohibition and Excise Superintendents, certain qualifications regarding fulfillment of physical fitness were also indicated. The other details of the notification may not be necessary except to state that it indicated that candidates responding to the notification must possess the requisite academic qualification from a recognized University as on the date of the notification. In so far as the minimum and maximum ages of the candidates seeking employment are concerned, the notification indicated that such age limits should be reckoned as on 1-7-2003.
6. Under the notification, the selection process is indicated. It consists of a screening test to which all the applicants, who are eligible in terms of the criteria indicated in the notification, would be permitted. Thereafter, a written examination called main examination is to be conducted for those candidates who are successful in the preliminary examination. The main examination, in turn, consists of a compulsory paper in English, one paper in General Studies, one paper in General Essay Writing and four papers in two optional subjects chosen by each of the candidate. Each one of the above mentioned papers carries 150 marks. The success i.e., securing minimum prescribed marks in the compulsory English paper is a condition precedent for consideration of the candidate for selection. In other words, notwithstanding a good performance in the compulsory and optional papers, if a candidate fails to secure the prescribed minimum marks in the compulsory English paper, the candidate will not be considered for selection. The successful candidates in the written examination will be subjected to an interview carrying 90 marks. In so far as the interview is concerned, successful candidates twice the number of the posts to be filled up, are only to be called.
7. In so far as the main examination is concerned, there is no fixed benchmark, which qualifies a candidate in the preliminary examination. On the other hand, the State of Andhra Pradesh in G.O.Ms.No.570 dated 31-12-1997 stipulated, inter alia, that "the number of candidates to be admitted to the written examination (conventional type) would be 50 times to the total number of vacancies available at material time irrespective of candidates". Therefore, depending on the performance of the candidates appearing in the preliminary screening examination the cut-off mark would be identified to ensure compliance with the stipulation contained in G.O.Ms.No.570.
8. It appears from the record, in response to the above notification, approximately 1,52,000 applications were received and a screening test was conducted on 28-3-2004 for the said applicants.
9. After the abovementioned notification was issued, the Government of Andhra Pradesh received representations from the unemployed candidates. The substance of the representations appears to be that as there was no direct recruitment from 1998 onwards, large number of graduates became age barred by the date of notification and it would be unjust not to consider their cases for recruitment on the ground that they are age-barred. The Government considered their request favourably and issued G.O.Ms. No. 164 dated 6-7-2004 thereby fixing relevant date for the purpose of upper age limit as 1-7-1999 instead of 1-7-2003 as originally indicated in the notification.
10. In the meanwhile, some of the petitioners in this batch of writ petitions approached the Andhra Pradesh Administrative Tribunal by filing original applications in O.A.Nos.1269, 1708, 6551 and 6558 of 2004 and 26 of 2005. The grievance of the petitioners in those applications is that all the available vacancies in Group-I services have not been notified by the respondents for the purpose of recruitment and, in fact, the available vacancies are more than 308 (as on 21-11-2003) and in view of the various rules framed by the State of Andhra Pradesh governing various services to which Group-I service pertains, the State is legally obliged to make recruitment of such specified percentage by direct recruitment and therefore not notifying all the available vacancies in so far as direct recruitment quota is concerned is illegal. The petitioners therefore prayed that there be a direction to the State of Andhra Pradesh to notify all the available vacancies as on the date of the notification in Group-I Services.
11. During the pendency of the abovementioned writ petitions, the State, however, continued its search for the available posts in Group-I Services and reached at a tentative conclusion that another 223 posts under the various categories of Group-I Services were required to be filled up by direct recruitment and requested the Service Commission to undertake the process. Therefore, a supplement Notification No. 6 of 2004, dated 7-8-2004, came to be issued by the Service Commission, notifying the abovementioned 223 posts in addition to the originally notified 301 posts, in all making 524 posts under the various categories of Group-I and seven backlog vacancies under SC and ST categories.
12. The petitioners still maintained that even the abovementioned 223 posts, subsequently notified are not exhaustive of the posts that are available to be filled up by direct recruitment in Group-I Services and an assertion is made by the applicants in the abovementioned four O.As. that there are some more posts available and are required to be filled up by direct recruitment. It appears, during the course of hearing of the abovementioned O.As., pursuant to the enquiry by the Tribunal, the State of Andhra Pradesh came forward with the information that apart from 524 posts referred to earlier, another 16 posts pertaining to Group-I Services were available to be filled up by direct recruitment.
13. During the course of hearing of this batch of cases, in response to an enquiry from the Court, the learned Government Pleader came up with the information that yet another 23 posts are still available to be filled up by direct recruitment. According to the petitioners, even this is not the final figure. Even the State does not make a definite and conclusive statement that the abovementioned posts are the only available posts to be filled up by direct recruitment in Group-I services. All that the State submitted in its pleadings is that these are the figures arrived at based on the information available with the Finance Department, which is the nodal department for collecting all the information and passing it on to the Service Commission.
14. Pursuant to the supplement notification, a second screening test for ail those applicants, who responded to the supplement notification, was held on 10-10-2004. It appears from the record that 51,768 candidates appeared at the second screening test. In view of the uncertainty prevailing because of the pendency of the original applications before the Tribunal as to the obligation of the State to notify all the available vacancies in Group-I, a question arose as to how many candidates should be admitted to the main examinations. As we have noticed that under G.O.Ms.No.570, dated 31-12-1997, the requirement of law was that the candidates to be admitted to the main examination are to be 50 times the number of posts that are sought to be filled up.
15. The Service Commission based on the performance of all the candidates, who appeared in both the screening tests, arrived at cutoff mark of 66 to satisfy the requirement as contemplated under G.O.Ms.No.570, but in view of the uncertainty about the number of posts to be filled up, the Administrative Tribunal by an interim order, dated 6-1 -2005, directed as follows:
After hearing the learned Counsel for applicants, learned GP and learned Standing Counsel, and after going through the material placed on record, it is seen that already sufficient time has elapsed in holding the examination and it is difficult to further postpone the examination. If 66 marks is taken as the basis for cut-off marks, 10,000 candidates would be there if vacancies which were not notified are considered basing upon the vacancies earlier notified, Even according to the affidavit filed by Finance Secretary, some more posts are there not notified but to be ascertained and by taking into consideration the principles of equity, justice and good conscience, cut-off marks may be reduced in the preliminary examination from 66 to 61 marks so that some opportunity is given to some more candidates to appear for main examination as some more posts are there not notified have to be considered. Accordingly, 61 marks may be taken as the criteria for preliminary examination for the purpose of appearing in the main examination and additional hall tickets may be sent to those persons immediately providing an opportunity to them who are aggrieved parties in the matter thus permitting them to appear in the main examination.
This direction can be taken as a General Direction to all the candidates who appeared in the preliminary examination though they are not parties to these matters.
16. Pursuant to the said direction, the Service Commission corresponded with the State of A.P. and the State of A.P. on a consideration of the matter, issued order in G.O.Ms.N.200, dated 30-4-2005. The relevant portion of the order reads as follows:
According to the orders issued in the Annexure-II to the G.O. first read above, the number of candidates to be admitted to the main written examination (Conventional Type) would be 50 (fifty) times to the total number of vacancies available at material time irrespective of communities, for recruitment to Group-I Services.
2. The Andhra Pradesh Public Service Commission issued Notification No. 21 of 2003 and Supplemental Notification No. 6 of 2004 for recruitment of Group-I Services. In the order 2nd read above, the Andhra Pradesh Administrative Tribunal directed that:
According to the affidavit filed by Finance Secretary, some more posts are there not notified but to be ascertained and by taking into consideration the principles of equity, justice and good conscience, cut-off marks may be reduced in the preliminary examination from 66 to 61 marks so that some opportunity is given to some more candidates to appear for main examination as some more posts are there not notified have to be considered. Accordingly, 61 marks may be taken as the criteria for preliminary examination for the purpose of appearing in the main examination and additional hall tickets may be sent to those persons immediately providing an opportunity to them who are aggrieved parties in the matter thus permitting them to appear in the main examination.
The direction can be taken as a General Direction to all the candidates who appeared in the preliminary examination though they are not parties to these matters.
In the reference 3rd read above the Secretary, Andhra Pradesh Public Service requested for issue of specific order to allow the candidates for the main examination duly taking 61 as cut off marks in the preliminary examination thereby more candidates will be called for main examination exceeding the prescribed ratio of 1:50 which is in variance to the scheme of examination as per the orders issued in the G.0.1st read above, consequent to the directions of the Andhra Pradesh Administrative Tribunal.
3. In the circumstances, after careful consideration Government direct the Andhra Pradesh Public Service Commission to reduce the qualifying marks from 66 to 61 to allow more candidates for the main examination for recruitment to Group-I Services with reference to the Notification No. 21 of 2003 and Supplemental Notification No. 6 of 2004 in relaxation of the orders issued in the G.O. first read above.
17. We are obliged to extract the entire G.O. for the reason that challenging legality of the said G.O., some of the candidates approached the A.P. Administrative Tribunal by way of O.A.Nos.3960,4583,5548 of 2005. To complete the narration of the facts in this regard, it must be stated here that the Administrative Tribunal in its final order dealing with the abovementioned O.As., held in substance that such an interim order, dated 6-1-2005 is beyond the jurisdiction of the Tribunal and the fixation of the percentage of cut-off marks as was done by the interim order would amount to interference with the authority of the State to frame the policy, and recorded, a categoric finding as follows:
The interim orders granted in O.A.No.26 of 2004, dated 6-1-2005 and in M.A.No.924 of 2005 in O.A.No.26 of 2004, dated 29-4-2005 shall stand vacated.
18. When the conduct of the main examination was in progress, some of the newspapers carried certain news items stating that there was a leakage of the question papers in three of the optional subjects, they are (1) Telugu, (2) Anthropology and (3) Public Administration, which resulted in a considerable turmoil and unrest in the State. It appears from the record that the State of Andhra Pradesh took note of the unrest and allegations that appeared in the newspapers, consequently, a Crime No. 158 of 2005, was registered in Abids Police Station of Hyderabad and later it was transferred to the Central Crime Station (CCS) and renumbered as Crime No. 436 of 2005 and we are informed that the same is still pending investigation in the sense that no final report as contemplated under Section 173 of the Code of Criminal Procedure has been filed.
19. The State of Andhra Pradesh appointed one of the Special. Chief Secretaries as One-man Commission to enquire into the allegations that appeared in the press. In the background of the abovementioned facts, another set of original applications came to be filed before the A.P. Administrative Tribunal praying that the whole examination process shall be cancelled in view of the alleged leakage of the question papers. Those O.As. are 2549, 2584, 3045, 5214 and 5356 of 2005, which eventually came to be dismissed by the Administrative Tribunal.
20. The State Government came up with one more concession in G.O.Ms.No.133 in favour of the candidates, who acquired the necessary academic qualification beyond the cut-off date specified in the 1st notification which remained unaltered even in the 2nd notification. By G.O.Ms.No.133, dated 23-3-2005, the State of Andhra Pradesh, issued an Ad hoc Rule, which reads as follows:
Notwithstanding anything contained in the A.P. State and Subordinate Service Rules or in the Special Rules for any State Services or the ad hoc rules, all the eligible candidates who are within the age limits in terms of the Orders issued in G.O.164 (Ser.A) Department, dated 6-7-2004 and also those candidates who fulfill the Educational qualification as on the date of Supplemental Notification (Notification No. 6/2004 to the main Notification No. 21/2003) and who did not apply earlier are eligible to apply.
21. In substance, making it possible for some more candidates to participate in the recruitment process who would otherwise have been disqualified on the ground that they did not possess the requisite educational qualification as on the date of the supplement notification. The legality of the said G.O., was challenged in O.A.No.1744 of 2005. The challenge was repelled by the Administrative Tribunal by its orders, dated 6-12-2005. Aggrieved by the same, the unsuccessful applicant therein preferred W.P.No.2263 of 2006.
22. Insofar as the group of O.As. where a direction to the State of A.P. to notify all the available vacancies in Group-I is concerned, they were heard along with other O.As, wherein the legality of G.O.Ms.No.200 was questioned and disposed of by a common order, dated 8-2-2006.
23. Insofar as the group of O.As., seeking cancellation of examination processes on the ground of leakage of question papers referred to earlier is concerned, they were disposed of by the Tribunal by another common order, dated 30-1-2006. Hence, all these writ petitions were filed by the unsuccessful parties.
24. On the question, whether the State can be compelled to notify all the vacancies in Group-I, available as on the date of the 1st notification, the Tribunal came to the conclusion:
...It is settled proposition that employer has the absolute right to determine the number of vacancies as well as take a decision as to how many of them should be filled up at a given point of time. However, the interim orders of this Tribunal passed in O.A. No. 1708/2004 dt. 16-4-2004, has given the applicants relief to some extent. The intentions of this Tribunal might have been good but at the same time it resulted in considerable amount of uncertainty wherein the process of selection which was initiated way back in the year 2003 is yet to be finalized. This Tribunal is not inclined to entertain the OAs seeking directions for inclusion of some more vacancies in the Group-I services for the reason that the uncertainty which is prevailing will continue to prevail if an indulgence is shown by this Tribunal at this stage. As pointed out herein above, it is the State Government's policy and such a policy decision cannot be interfered with by this Tribunal.
25. It can be seen from the above that the Tribunal held that the State has an absolute discretion either to fill up or not to fill up any post and such a discretion cannot be interfered with by the Judicial Bodies. Three issues in this regard require an examination; (i) whether the State has an unfettered discretion not to fill up any vacancy; (ii) whether such a decision would be a policy decision; and (iii) even if assuming that such a decision is a policy decision, whether such decisions are immune from judicial scrutiny?
26. The other question, which fell for the consideration of the Tribunal in the above batch of cases, is the legality of G.O.Ms. No. 200, dated 30-4-2005. The Tribunal came to the conclusion that the said G.O. was issued only because of the interim orders of the Tribunal on 6-1-2005 and that such an interim order would amount to interference with the process of selection, resulting in prejudice to the rights of the candidates, who were qualified to take the main examination in terms of G.O.Ms.No.570, referred to earlier. Therefore, the Tribunal held the G.O.Ms. No. 200 to be illegal.
27. In our view, the correctness of the conclusions reached by the Tribunal on the legality of the G.O.Ms.No.200, necessarily depends on our conclusion on the issue whether the Tribunal has the jurisdiction to compel the State to notify all the available vacancies as on the date of the notification, because if the Tribunal has the jurisdiction, an interim order such as the one passed on 6-1-2005, cannot, perhaps, be totally dubbed as a interference with the "process of selection". A further question, whether such an interference, even if permissible purely from the point of view of the jurisdiction, would prejudice the rights of any of the candidates, who were qualified to take the main examination in terms of the 1st notification dated 21-11-2003, still requires to be examined.
28. We shall examine these questions. Undisputedly, all the available vacancies in Group-I services are not notified in the 1st notification dated 21-11-2003. We have already seen that from time to time the Government came out with the information that there are some more vacancies to be filled up with the direct recruits falling under Group-I services. It is not the case of the Government that even as on to-day, the vacancies falling under the category of Group-I services available as on the date of the 1sl notification are completely identified. It is the case of the State that as the service's of Group-I officers are spread over some 20 departments in the State of Andhra Pradesh, the necessary information as to the available vacancies is required to be collected. Earlier, each of the departments, where the services of Group-I officers are utilized, used to directly communicate with the Service Commission, requesting it to undertake the selection process for the number of vacancies to be filled up by the department concerned. As the government thought it inexpedient to follow such procedure, it issued certain orders, the details of which are not necessary for the present purpose, directing that all the departments wherever Group-I service posts are vacant, are required to inform the Finance Departmental, which is constituted to be the nodal agency for the purpose of recruitment through the Service Commission. Therefore, the information, pertaining to the vacancies in various departments, was not readily available with the Finance Department either as on the date of the 1st notification or, for that matter, even as on the date of the hearing of these writ petitions. Therefore, the Government could not intimate the Service Commission the details of all the available vacancies, but only requested the Service Commission to undertake the recruitment process for that many vacancies, which were clearly identified by the State by the date of the 1st notification i.e., 21 -11 -2003. The State, nonetheless, continued the enquiry regarding the availability of the vacancies in Group-I posts and identified 223 posts, after the screening test, pursuant to the 1st notification and called upon the Service Commission to undertake the recruitment process for the abovementioned additional vacancies and also issued orders relaxing the upper age limit and amending the cut-off date with reference to the academic qualification.
29. On the other hand, the case of the writ petitioners is that, it is not really difficult to identify the number of posts falling under Group-I, which are vacant and required to be filled up with direct recruits, but the State, deliberately going slow on the process, as large number of vacancies to be filled up with direct recruits have already been filled up on temporary basis by promoting various departmental candidates and if a direct recruitment is undertaken to all the posts earmarked for the quota of direct recruits, necessarily, those who were temporarily promoted to these posts in excess of their quota, will have to be reverted, thereby displeasing those who were temporarily promoted. Hence, inaction by the State is the submission of the writ petitioners.
30. The State never denied its obligation to fill up all the posts falling to the quota of the direct recruits. Obviously, the State cannot deny so long as the relevant rules framed under Article 309 of the Constitution of India are on the Statute Book, stipulating a specified quota by direct recruitment in each of the services in Group-I posts are available. As usual the State did not make any categoric denial of the petitioners' assertion that in various services, recruitment was made by promotion in excess of the quota meant for such recruitment. All that the State pleaded is that it is unable to arrive at the accurate figures. A lamentable state of affairs; that the State with all the resources at its command, both material and technological, is still not able to identify the exact number of posts falling under Group-I that are required to be filled up by the process of direct recruitment. We are only left with an inference that the State lacks the political will to complete the exercise, even after 11/2 years ever since it decided to make recruitment to Group-I posts.
31. The questions, therefore, are whether the State could, in law, be compelled to notify all the available posts by a Judicial Authority-either the Tribunal or this Court? If the Judicial Authorities have such a jurisdiction, whether such ajurisdiction should be exercised in the present case?
32. The State relied on two decisions of the Supreme Court in Government of Orissa v. Haraprasad Das and Ors. AIR 1998 SC 375 and Government of A.P. and Anr. v. P. Ravinder and Ors. 1991 (5) SLR 90.
33. The Tribunal accepted the submissions of the State that the decision of the State either to fill up or not to fill up a particular vacancy is in the realm of policy making as the State, being the employer, has an absolute discretion not to fill up any particular post. The Tribunal, therefore, held that it has no jurisdiction to interfere with such a policy decision.
34. It is the settled position of law that there are no policy decisions which are absolutely immune from the judicial scrutiny. It is abundantly clear from the decision of a Constitutional Bench of the Supreme Court made in Bennett Coleman and Co. Ltd. and Ors. v. Union of India and Ors. .
35. Even the two Judgments cited (1 and 2 supra) relied on by the State and accepted by the Tribunal do not support the proposition that the policy decisions are absolutely beyond the scope of judicial scrutiny.
36. In the decision cited (1 supra), the Supreme Court was dealing with a case where the State of Orissa issued a notification, inviting applications to fill up, by direct recruitment, six posts of Copyholders in the Government Press. Some time after the recruitment process commenced, the Government of Orissa took a decision to impose a ban on the filling up of the 2/3rd of the vacancies of the base-level posts into which category, obviously, the abovementioned Copyholders post fell. It was in the abovementioned context, the Supreme Court held that;
Merely because there was some vacant posts of Copyholders and the Director of the Press had recommended to the Government to fill up those posts, it was not open to the Tribunal to direct the Government to fill up those posts even though it had good reasons not to do so.
(Emphasis supplied)
37. The Supreme Court further observed that; "whether to fill up or not to fill up a post, is a policy decision and unless it is shown to be arbitrary, it is not open to the Administrative Tribunal to interfere with such decision of the Government and direct it to make further appointments.
38. It is obvious from the above extracted dictum of the Supreme Court that arbitrary policy decisions are still amenable to the judicial scrutiny and it is also obvious that a decision by the Government not to fill up an existing post, must be taken for good reasons. Good reasons, we understand, are those reasons, which are inherently rational and have a reasonable nexus with some object sought to be achieved by the State in public interest. In other words, there should be a deliberate conscious and a rational policy choice by the State.
39. Coming to the decision cited (2 supra), it was a case, where the State of Andhra Pradesh decided to give weightage to the candidates, who studied in Telugu medium, in all recruitment processes undertaken by the A.P. Public Service Commission, Recruitment to all the Government services in the State of Andhra Pradesh is not processed by the Service Commission alone. Various other statutorily recognized bodies, such as, Police Recruitment Board, etc., also undertake such a process. The question before the Supreme Court was whether the benefit of weightage as the one mentioned above should be extended to all the recruitments irrespective of the fact whether they were processed by the Service Commission or not. In the said context, notwithstanding the language of the relevant Government Order in which such a decision was incorporated, the Administrative Tribunal took a view that having regard to the policy behind the decision of the State to give weightage in favour of the candidates, who had studied in Telugu medium, the order requires a liberal interpretation, prompted by a purposive construction and therefore, directed such weightage to be given to all the candidates who had studied in Telugu medium irrespective of the fact whether the recruitment into the services of the State of Andhra Pradesh is processed by the Service Commission or not. The Supreme Court, however, reversed the Tribunal's decision holding that the Tribunal went beyond its jurisdiction in compelling the State to extend the benefit irrespective of the fact whether the recruitment process is conducted by the Service Commission or not. The Supreme Court did not decide the legality of the policy decision of the State to restrict the benefit only to the recruitments that are processed through the Service Commission. The Supreme Court categorically pointed out that such a question did not arise in the matter before it, but was pending adjudication before the Supreme Court in some other matter.
40. In our view, this decision is not an authority for the proposition that Judicial Bodies have no jurisdiction to examine the legality of the policy decisions of the State. The decision is only an authority for the proposition that when the State takes a conscious policy decision to extend a particular benefit to a limited set of subjects, Judicial Bodies cannot compel the State to extend the benefit to others whose cases are not covered by the language of the instrument by which such benefit is created. Apart from that it is also not relevant for the case on hand for the reason that there does not appear to be any conscious decision of the State not to fill up all the posts falling under Group-I. The State only expressed its inability to identify the posts, but did not decide not to fill up those posts on some policy considerations, such as, financial stringency, etc. The inability of the State, in our view, cannot be called a policy decision.
41. In our view, to be called a policy decision, there must be a conscious decision after an appropriate deliberation on the issue involved. We have already taken note of the settled legal position earlier, that even such policy decisions are not immune from judicial scrutiny on the ground of violation of either some Constitutional mandate or the provisions of some law.
42. The pleadings of the State were elaborately considered by the Tribunal and we have also carefully gone through the counter-affidavits filed by the State. It is nowhere pleaded that the State took a conscious policy decision not fill up either some or all Group-I service posts. On the other hand, the assertion of the petitioners that the posts meant to be filled up by direct recruitment in the Group-I services, have been filled up by promoting the in-service candidates in excess the quota permissible to them under the relevant rules, went totally uncontested. At Paragraph No. 7 of the Tribunal's Judgment, the Tribunal, took note of the above mentioned assertions of the petitioners. Nothing is brought to our notice by the State to demonstrate that such an assertion of the petitioners is ever disputed or rebutted. On the other hand, it is the submission of the State before the Tribunal as noted by the Tribunal in Paragraph No. 20 of its judgment, which reads as follows:
They further submit that the Heads of the Departments and Administrative Departments have to calculate vacancies as per the cycles fixed in the Service Rules and send necessary proposals to the Government in the Finance Department for notifying vacancies meant for direct recruitment.
If any vacancies come to the notice of the Department, the same will be notified to the APPSC in due course and sought dismissal of the O.As.
(Emphasis supplied)
43. Therefore, denial of the relief of the petitioners, (seeking a direction to the State to notify all the Group-I posts to be filled up by direct recruitment), on the ground that granting such relief, would tantamount to an invasion into the realm of the State's policy-making power and beyond the jurisdiction of the Tribunal, in our view, cannot be sustained -No decision was ever taken by the State not to fill up all the existing vacancies in Group I Services.
44. The question whether the facts of the present case warrant the exercise of such jurisdiction would be examined later in this Judgment.
45. The next important question that is required to be examined is that whether the Administrative Tribunal is right in setting aside the G.O.Ms.No.200, dated 30-4-2005. Before we examine the correctness of the decision, it is necessary to understand the purpose and background of the G.O.
46. The constitutional mandate insofar as the employment under the State is that the State must provide an equal opportunity for all the citizens. It is a mandate flowing from Articles 14 and 16 of the Constitution of India. However, the authority of the State to prescribe the appropriate qualifications either academic or other such as the age limit etc., deemed necessary to be possessed by the candidates seeking employment under the State is well recognised. The decision as to such qualifications is a decision to be taken having due regard to a number of factors like the nature of the job that is offered by the State, the number of available candidates who are broadly suitable for the appointment etc. Such a decision, necessarily, is in the realm of policy-making power of the State, subject, of course, to the well recognized legal limits. However, when a large number of candidates are available having the basic qualifications prescribed for competing for appointment to a particular post or class of posts and where the available posts are limited, necessarily, the State must prefer the best among the available candidates, subject, of course, to the well-known exception of making a protective discrimination in favour of the various classes of citizens who are constitutionally identified for such protection i.e., Scheduled Castes, Scheduled Tribes, Backward Classes etc. The State, therefore, is compelled to make a further assessment of the relative merits of all the competing candidates by some legally permissible method. Competitive examination such as the one conducted in the present case is one such method. The conduct of the competitive examination by definition is a process of filtering or eliminating the less suitable candidates though they possess the basic qualification prescribed by the State in the context of a given post/class of posts. Such filtering process can take various forms depending upon the nature of the posts sought to be filled up and the mode of filtering may vary from time to time and also from class to class of the posts sought to be filled up.
47. The pattern of the selection process (filtering), in the context of the present case, is already taken note of earlier in this Judgment. It consists of a preliminary examination, a final examination; called the main examination and a oral examination. In other words, there are three layers of filtering. The preliminary examination is held for all the candidates, who have the basic academic and other prescribed qualifications necessary as specified in the notification, inviting applications. The main examination is designed to be held for only to some of the candidates, who are found more competent in the preliminary examination. The conclusion as to who is relatively more competent from out of the candidates appearing in the preliminary examination, can be reached in various ways. It can be achieved by prescribing a benchmark or a cut-off mark. The cut-off mark can be prescribed directly by the State or the State can devise a system by which the cut-off mark can be worked out depending upon the average performance of all the candidates appearing in the preliminary examination. For example, in a given case, where the posts required to be filled up are only 100 in number and the candidates seeking appointment are 10,000 in number, the State can directly prescribe a cut-off mark of, let us say, 90% in the preliminary examination, which would enable only those candidates, who secure above 90%, to take the main examination. However, depending upon the quality of the candidates appearing for the preliminary examination, it can happen that nobody may secure marks above such high cut-off mark. Since the purpose of selection is only assessment of relative merits of all the candidates, who satisfy the basic qualifications prescribed, the State can also devise a system by which the candidates, who perform better in the preliminary examination, can be identified. Such a devise was created initially by the State in G.O.Ms. No. 570, where the State prescribed that more meritorious of the candidates 50 times in number to the number of posts to be filled up are required to be identified. In this process, the overall merit list of all the candidates appearing in the preliminary examination is prepared and a cut-off mark is arrived at by identifying that many number of candidates as indicated above from out of the total number of candidates.
48. We do not find anything sacrosanct in the stipulation of the State under G.O.Ms. No. 570 when it prescribed 1:50 ratio between the available number of posts and the candidates to be permitted to the main examination. The State could, as well, have chosen 1:60 or 1:40 ratio. The ultimate purpose is to choose the best among a large number of candidates, who have the basic qualification.
49. It is in the abovementioned background, the legality of G.O.Ms.No.200, is required to be examined.
50. In view of the uncertainty about the available number of posts to be filled up in the present case and in view of the uncertainty created by the pendency of the litigation before the Tribunal, the Tribunal, by an interim order dated 6-1-2005, directed that a cut-off mark lower than the one already arrived at in accordance with the ratio prescribed under G.O.Ms.No.570, be fixed obviously, for the reason that if, eventually, more number of posts in Group-I are to be filled up, fixing lower cut-off mark would satisfy the requirement of the ratio prescribed under G.O.Ms.No.570. The State of Andhra Pradesh had a choice to question the legality of such interim direction, if it really believed that such an interim direction is an invasion of their authority to take a decision as to the number of posts to be filled in Group-I services or their authority to fix the norms of the selection process for such a recruitment. The State did not quarrel the interim direction, obviously, for the reason that it is aware of the fact that there are more number of vacancies than are notified, (which could not be ascertained at that point of time, precisely) and also obviously, the State was willing to fill up all such posts as and when they were identified. These conclusions are obvious from the fact that the State, from time to time, during the pendency of the litigation either before the Tribunal or this Court, continued identification of the available posts and it never took a categorie stand that it does not wish to fill up such posts for any valid reason. The State, therefore, accepted the interim direction of the Tribunal and took a conscious decision to alter the procedure adumbrated in G.O.Ms.No.570 and, therefore, issued G.O.Ms.No.200, which is under challenge.
51. This conclusion of ours is fortified by the fact that the State not only identified 223 more posts but also called upon the Service Commission to undertake the recruitment process even for those posts though at that time the preliminary screening examinations for those candidates, who responded to the 1st notification, was conducted. It is worthwhile mentioning that the 2nd notification, regarding the abovementioned 223 posts, was issued on 7-8-2004. Obviously, the decision of the State to fill up those posts, requesting the Service Commission, must have been prior to that date. At that point of time, there was no compulsion on the State to take such a decision to fill up those posts, as there was neither a final order of any Judicial Body to fill up all the posts nor any interim direction. The interim direction of the Tribunal to alter the cut-off mark came to be issued much later, i.e., on 6-1-2005. Therefore, the conclusion of the Tribunal that G.O.Ms.No.200 came to be issued by the State only because of the interim direction dated 6-1 -2005, in our view, is not justified.
52. An attempt is made by the learned Counsel appearing for some of the contesting respondents to sustain the abovementioned conclusion of the Tribunal on the basis of the language of G.O.Ms.No.200. Though the tenor of the instrument is an important indicator of the reasons, which prompted the decision of the State, but it is not always conclusive. But, an examination of the surrounding circumstances, which is also a permissible mode of enquiry, would convince us that the State took the decision contained in G.O.Ms.No.200 not only because of the interim direction of the Tribunal, but on a consideration of all relevant factors.
53. However, this conclusion of ours does not totally obviate the difficulty in deciding the legality of G.O.Ms.No.200. Few more allied questions are required to be examined: (1) whether the issuance of the G.O.Ms. No. 200, enabling the participation of more number of candidates in the main examination would in any way affect the 'right', if any, of those candidates, who would have been the only candidates eligible to take the main examination, but for the issuance of G.O.Ms.No.200; and (2) the second question is (the one raised in O.A.No.6022 of 2004 = W.P.No.5144 of 2005). Whether by holding a second preliminary screening test, pursuant to the decision of the State to recruit 223 more posts, would violate Article 14 of the Constitution of India, as different standards are adopted for the two sets of applicants, who responded to the two notifications of the Service Commission.
54. We shall examine the questions now. The submission of the contesting respondents i.e., those who are opposing the issuance of G.O.Ms.No.200 is that by virtue of the said CO., those candidates who would only have been entitled to participate in the main examination under the scheme of G.O.Ms.No.570\s that they would now be compelled to compete with more number of candidates seeking employment by virtue of the reduced cut-off mark prescribed under G.O.Ms.No.200 and therefore their chances of success are reduced. In our view, such a submission suffers from a fundamental fallacy. No candidate has either a fundamental or other legal right to be considered exclusively for the employment under the State. The constitutional guarantee is only that all the eligible candidates shall be treated equally. No doubt, G.O.Ms.No.200 has the effect of increasing the number of candidates eligible to participate in the main examination. Such an increase is consistent with the principle laid down in G.O.Ms.No.570 i.e., candidates 50 times more in number than the number of posts to be filled up or required to be called for the main examination. The decision under G.O.Ms.No.200 is a logical extension of the decision of the State to fill up 223 more posts other than the posts notified under the 1st notification. If the State had taken a decision to only increase the number of posts to be filled up but did not decide to reduce the cut-off mark, still the contesting respondents would have to face more competition in terms of numbers as the requirement under G.O.Ms.No.570 is that candidates 50 times more in number to the number of posts sought to be filled up are required to be examined in the main examination. The posts sought to be filled up finally under both the notifications are 531 as against the initially notified 308 posts. None of the contesting respondents challenged the decision of the State Government to notify the additional 223 posts under the second notification. Obviously, they wish to take advantage of the availability of more number of posts. Even if the Government did notissueG.O.Ms.No.200on 30-4-2005, each one of the complainants would still have had to compete with a minimum of 26650 (531 x 50) others. We say 'minimum' because if there is only one candidate who secured the cut-off mark, the total number of competitiors would be 26650. If there are a number of candidates who secured the cut-off mark which is a fair possibility in any examination system where admittedly about 2V2 lakhs of candidates participated, obviously, the State cannot choose any one of the candidates who secured the same cut-off mark but would be compelled to permit to take the main examination, each one of the candidates who had secured the cut-off mark. So, the number of eligible candidates to appear for the main examination could vary between a minimum of 26650 to anything depending on the performance of the innumerable candidates who appeared in the preliminary examination. The whole system is dependent upon a chance. Therefore, we do not see any reason to accept the submission that the issuance of G.O.Ms.No.200 resulted in a greater competition insofar as the contesting respondents are concerned. As a matter of fact, we are informed that by virtue of the operation of G.O.Ms.No.200, approximately 50726 candidates became eligible as against the minimum of 26650 candidates. Whereas, out of the abovementioned 50726 only 32056 candidates actually appeared for the main examination, thereby adding approximately 5000 more candidates to the competition above the minimum of 26650 candidates indicated above. This addition of 5000 need not necessarily have taken place only because of the issuance of G.O.Ms.No.200. As pointed out earlier, even if G.O.Ms.No.200 were not to be there depending upon the accident of how many candidates would secure the cut-off mark as would have been arrived at on the basis of G.O.Ms.No.570, the number could be higher than 26650. It follows, therefore, that the rights, if any, of the contesting respondents would vary with accidents/chances. In our view, such accidents/chances do not create or form the basis of any legal rights.
55. However, the learned Counsel appearing for the contesting respondents relied upon some decisions of the Supreme Court in support of their submission that G.O.Ms.No.200 is illegal on the ground that the rules of the game i.e., the criteria for selection cannot be altered in the middle or after the process of selection is commenced. According to the submission of the learned Counsel for the contesting respondents, G.O.Ms.No.200 did alter the criteria for selection after the process of the selection commenced.
56. The rights of the successful candidates in the process of selection for appointment to any post under the State and the corresponding obligations of the State were considered by a Constitution Bench of the Supreme Court in Shankarsan Dash v. Union of India .
7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted....
57. Subsequently, the Supreme Court on another occasion considered the issue in a case reported in Jai Singh Dalai v. State of Haryana1993 Supp, (2) SCC 800. It was a case where the State of Haryana initiated the process of recruitment for 45 vacancies in one of the branches of civil service, the relevant rule read as follows:
5. Members to be appointed by the Governor of Haryana from amongst accepted candidates: Members of the service shall be appointed by the Governor of Haryana from time to time as required from among accepted candidates whose names have been duly entered in accordance with these rules in one or other of the registers of accepted candidates to be maintained under these rules:.
Provided that if in the opinion of the State Government the exigencies of the service so require, the State Government may make special recruitment to the service by such methods as it may by notification specify, after consultation with the Public Service Commission.
58. The substance of the rule is that appointment to the relevant service shall be made from out of the candidates whose names have already been duly entered in a register maintained in accordance with those rules. However, the proviso enabled the Government to depart from the procedure contained in the rule and adopt a different procedure to be specified by a notification after consultation with the Public Service Commission. A special procedure contemplated under the proviso was notified for the purpose of filling up 21 out of the 45 posts referred to earlier, in substance appointment by transfer. Certain categories of employees who are otherwise eligible for appointment by transfer were excluded from consideration initially, but later by a notification those excluded categories are also made eligible for consideration. By a subsequent notification dated 25-1 -1991, once again there was an amendment to the eligibility criteria needed for consideration to the appointment by transfer. By another notification dated 30-12-1991, the notification dated 25-1 -1991 was sought to be revoked by which date the recruitment process was in an advanced stage. It was the notification dt. 30-12-1991 which was challenged before the Supreme Court.
59. Two questions were considered by the Supreme Court in this case; Whether the recruitment process, which was at a fairly advanced stage, conferred any indefeasible right of appointment in favour of the successful candidates. The Supreme Court relied upon the earlier decision of the Constitution Bench in Shankarsan Dash (4 supra) and reached the conclusion that no indefeasible right accrued to the candidates participating in the selection process until the appointments are made. The Supreme Court clarified a decision of the Punjab & Haryana High Court in Rameshwar Nath Moudgil v. State of Punjab1978 S LJ 258 (P & H) (HC), wherein it was apparently held otherwise. The facts of the said case were that the eligibility criteria to the post in question were altered retrospectively during the pendency of the process of selection. Such alteration jeopardizes the chances of Ramesh war Nath. The Punjab & Haryana High Court held that such a retrospective alteration would violate the provisions of Article 16 of the Constitution of India. The Supreme Court clarified that such a conclusion that the alteration violated Article 16 of the Constitution was reached by Punjab & Haryana High Court in the fact situation surrounding the case which led to an irresistible conclusion that the retrospective amendment was aimed at excluding the Rameshwar Nath, the Supreme Court observed as follows:
...It was in that context that the Court came to the conclusion that when the process of selection had gone to a certain length and was crystallizing into selection, it was not open to the Government to amend the rule retrospectively with a view to excluding the petitioner and perhaps his companion from being considered for appointment. If the observations of the High Court were to be read to convey that merely because the selection process had travelled a certain length it was not open to the Government to interfere with the selection process by revising the criteria for appointment and that the Government was under an obligation to make an appointment on selection, such an interpretation would run counter to the ratio laid down by the Constitution Bench of this Court in the case of Shankarsan Dash(4 supra) and would, therefore, not be good law....
The Supreme Court further categorically observed that;
...the authority which has the power to specify the method of recruitment must be deemed to have the power to revise and substitute the same in the same manner... such an inherent power exists in the authority to alter, vary, change or replace its creation.
60. However, the Tribunal relied upon an observation made by the Supreme Court in Maharashtra State Road Transport Corporation and Ors. v. Rajendra Bhimrao Mandve , which reads:
It has been repeatedly held by this Court that the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. Therefore, the decision of the High Court, to the extent it pronounced upon the invalidity of the circular orders dt. 24-6-1996, does not merit acceptance in our hand and the same are set aside.
61. Obviously, the earlier decision of the Supreme Court in Rameshwar Nath Moudgil (6 supra) decided by a Bench consisting of Three Judges was not brought to the notice of their Lordships.
62. The learned Counsel for the contesting respondents relied upon another Judgment of the Supreme Court in Secy., A.P. Public Service Commission v. B. Swapna . At para 14 of the said Judgment it is held as follows:
...Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran v. State of Karnataka and Gopal Krishna Rath v. M.A.A. Baig .)
63. In our considered view the decision is only an authority for the proposition that if the eligibility criteria is altered with retrospective effect during the pendency of the selection process which has already commenced, prescribed a lower standard of eligibility, there can be a legitimate grievance by those who would have been eligible to participate in the selection process by virtue of the amended eligibility criteria on the ground that if such amended eligibility criteria were known to such candidates they could also have participated in the selection process. Unfortunately, the principle laid down in Jai Singh Dalai (5 supra) was not brought to the notice of the Bench.
64. We, therefore, reject the submission of the contesting respondents that as a matter of absolute rule there can never be an alteration of the rules governing the recruitment process in the mid-stream. From an examination of the various decisions referred to above, we understand the legal position to be that the rules governing the recruitment process cannot be altered in the mid-stream in such a way as to affect the rights of the candidates participating in the selection process to their detriment. By the expression "detriment" we mean altering in such a way by which some or all of the otherwise eligible candidates are rendered unfit for appointment on some count or the other.
65. Alteration of the rules such as the one in question before us making some more candidates eligible to participate in the selection process falls into a different category. No authority is placed before us to establish that even such an alteration is legally impermissible. Therefore, we conclude that the contesting respondents did not have any indefeasible and legally enforceable right, to be appointed, merely because they participated in the selection process, pursuant to the 1sl notification dated 21-11-2003. This we say on the authority of a Constitutional Bench decision in Shankarsan Dash (4 supra). We also conclude that there is no prohibition in law preventing the State from altering the process of selection in the midstream as long as such an alteration did not render any one of the otherwise eligible candidates ineligible to participate in the selection process. All that the alteration in question sought to achieve is to enable some more candidates also to participate in the selection process. The power to make such alteration is within the power of the State as observed by the Supreme Court in Jai Singh Dalal's case cited (5 supra).
66. One more decision relied upon by the Administrative Tribunal is Gopal Krishna Rath v. M.A. Baig (supra) . It was a case where the U.P.S.C. conducted an examination for filling up of 740 posts and the notification itself made it clear that the number of vacancies was subject to alteration. Eventually, the number of vacancies was finally determined to be 740 only. Though it is not very much clear from the Judgment, it appears that according to the relevant rules that the candidates not more than twice the number of vacancies to be filled up, are required to be called for interview. The Service Commission chose to call only 964 candidates for interview. Some of the participants approached the Administrative Tribunal praying that in view of the fact that 740 vacancies are to be filled up, 1480 candidates ought to be called for interview. The Tribunal declined the relief. Further, when the matter was carried to the Allahabad High Court, the High Court accepted the submission of the petitioners. The Supreme Court did not approve the decision of the Allahabad High Court. In the process of examining the correctness of the decision of the Allahabad High Court, the Supreme Court observed that calling more number of candidates for the interview than the permitted under the rules, may result in prejudice to those who are only entitled to be called, in accordance with the rules. The observations of the Supreme Court to the effect that such a direction from the High Court may result in prejudice, must be understood in the context and consonance with the Judgment in Shankarsan Dash's case (4 supra). The Supreme Court never held that the candidates, who are entitled to be called for interview in accordance with relevant rules, have any indefeasible right of appointment. The Supreme Court held that in compelling the U.P.S.C. to call for interview more number of candidates than permissible under the relevant rules, the High Court went beyond its jurisdiction.
67. We, therefore, hold that G.O.Ms. No. 200, is valid and reverse the finding of the Tribunal in this regard.
68. The next question that is required to be considered is the legality of G.O.Ms. No. 164, dated 6-7-2002, wherein altering the relevant date for the purpose of reckoning the upper age limit from 1-7-2003 to 1 -7-1999 and G.O.Ms.No.133, dt. 23-3-2005, by which the State altered the cut-off date with respect to the acquisition of the basic educational qualification on the part of the candidates. By the said G.O., the cut-off date was altered from 21-11-2003 to 7-8-2004.
69. The Administrative Tribunal rejected the challenge on both the counts and we do not see any reason to interfere with the same for the same reasons assigned by us for upholding the G.O.Ms.No.200. In substance, the effect of the abovementioned two G.Os. is to, alter the eligibility criteria, but such an alteration did not in any way affect any legal rights of the candidates, who would have been the only eligible candidates to participate in the selection process but for the alteration as their only right is to be considered along with other eligible candidates. The result of these two G.Os. is that they enabled some more candidates who would have been ineligible to participate in the selection process but for the said two impugned GOs to participate in the selection process.
70. In view of the decision in Shankarsan Dash (4 supra), as there is no indefeasible right in favour of any one of the candidates participating in the selection process, we uphold the validity of the abovementioned two G.Os.
71. The next question that is required to be examined is whether the entire selection process is vitiated on the ground that there was a leakage of some of the question papers in the main examination. We have also taken note of the allegation that in three optional subjects, Telugu, Public Administration and Anthropology question papers leaked out before the date of the examination. The basis of such an allegation, as it appears from the pleadings, is that there was a widespread publicity in the print and electronic media to that effect. Some of the newspapers even published a set of questions in each of the abovementioned papers allegedly the questions, which are to appear in the relevant paper in the main examination. It is not a case where an accurate copy of the question paper in any one of those abovementioned subjects was reproduced in any one of the newspapers before the examination. If it were to be so, perhaps it is possible to draw an inference that there was a leakage of the question papers. The question papers published in various newspapers, no doubt, bear close resemblance to the actual question papers i.e., some of the questions are verbatim identical to the questions in the original paper whereas some of the questions are close to the questions in the original paper and some of the questions are misleadingly close to the original questions in the official papers. Even the percentage of closeness varies from (news) paper to paper and subject to subject. In such circumstances, it cannot be said positively that there was a leakage as submitted by the learned Counsel appearing for some of the writ petitioners. It could have been an intelligent guess which is always present in any system of examination. On the other hand, the State of Andhra Pradesh appointed a One-man Commission manned by one of the Special Chief Secretaries of the State of Andhra Pradesh (Dr. V.P. Jauhari). The Special Chief Secretary on an enquiry came to the conclusion that there was no leakage of question papers and submitted a report dated 15-7-2005. An attack is made by the learned Counsel appearing for the petitioners that such a report was submitted without there being an opportunity to any one of the candidates to establish the truth of the allegations of leakage and a copy of the report is never made available to the public. We are of the opinion that the existence of such a report irrespective of the conclusions reached therein does not clinch the issue either way. Such enquiry reports are meant for the information of the administration for its guidance to take appropriate action suitable to the situations and some times for the guidance in future.
72. We are also informed that based on the allegations which appeared in the media, a criminal case also came to be registered in Crime No. 158 of 2005, Abids Police Station and later it was transferred to the Central Crime Station (CCS) and renumbered as Crime No. 436 of 2005 and the investigation is not yet completed, in the sense, no final report under Section 173 of the Code of Criminal Procedure, is yet filed.
73. In the abovementioned circumstances, we are only left with allegations and counter allegations regarding the leakage of the newspaper and in the absence of any clear proof on record before us, we are not inclined to interfere with the selection process on that count and, in our view, the Tribunal rightly declined the relief on this count.
74. The next question that is required to be examined is the submission not based on the pleadings in any one of the original applications before the Tribunal, but a plea in this regard is taken for the first time in this Court in W.P.No.3149 of 2006. The plea is that the whole selection process must be nullified for the reason that two of the children of the then Chairman of the Service Commission participated in the selection process. The learned Counsel for the petitioners, Sri Nuty Ram Mohan Rao, therefore submitted that in view of the fact that the Chairman of the Service Commission has an overall control over the affairs of the Service Commission and access to every confidential information including the question papers, should have recused himself from the selection process. Since he did not do so, the selection process is vitiated on the ground that the Chairman of the Service Commission has an interest in the result of the selection process. The explanation offered by the learned Counsel for not raising this plea before the Administrative Tribunal is that these facts are not known to any one of the petitioners, but came to light only when the Tribunal, on a perusal of a copy of the report of the Special Chief Secretary referred to earlier, found the above facts and incorporated the same in its order dated 30-1-2006 in O.A.No.3045 of 2005 and Batch. The learned Counsel submitted that the principle laid down in A.K. Kraipak v. Union of India is squarely applicable to the present case in the background of the facts mentioned above.
75. Before we examine the question whether the principle laid down in A.K. Kraipak's case9 is applicable to the facts of this case, we must also make it clear that the Tribunal as a matter of fact found that one of the two children of the former Chairman of the Service Commission dropped out of the selection process half way through in the sense that he did not attend all the papers in the main examination, but appeared for only some of them.
76. The factual background of the A.K. Kraipak's case9 is as follows:
Kraipak and others were officers serving the Forest Department of the State of Jammu and Kashmir. Indian Forest Service is one of the Services constituted under Section 3(1) of the All India Service Act, 1951. Under the Rules framed by virtue of the delegated power under the abovementioned Act, Members of the various State Forest Services are also made eligible for recruitment of the All India Services upon ad-judgment of the suitability of such officer. The ad-judgment is required to be made in accordance with the regulations made by the Central Government. Such regulations are known as Indian Forest Service (Initial Recruitment) Regulations, 1966. The Regulations, inter alia, provided for constitution of a Special Selection Board and the composition of which is indicated therein. The Regulations also provide for the mode of adjudging the suitability of a candidate in the Forest Service of a State for appointment to the Indian Forest Service. A Special Selection Board was constituted. One of the Members being the Acting Chief Conservator of Forests of Jammu and Kashmir, one Naquishbund. Under the Regulation, the process of adjudgment of the suitability is not by way of any examination written or oral. The Special Selection Board, it appears, made the selections solely on the basis of the service records of various contending officers. The Acting Chief Conservator of Forests, Naquishbund, was also one of the candidates, whose case was considered by the Special Selection Board. It is in this background, some of the candidates, who were adjudged unsuitable for selection to the Indian Forest Service, filed writ petition, challenging the selection process. One of the grounds was that the entire process was vitiated, in view of the violation of the principles of natural justice, more specifically, that no one shall be a judge in his own cause. As Naquishbund was one of the contenders, his presence and participation in the Special Selection Board, vitiated the entire selection process. The Supreme Court, therefore, held that the selection process was vitiated and it reasoned as follows:
He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of Naqishbund to keep out his rivals in order to secure his position from further challenge. Naturally he was also interested in safequarding his position while preparing the list of selected candidates.
77. In the case on hand, the then Chairman of the Service Commission is not a candidate seeking any appointment, pursuant to the notifications in question, but his children are candidates. We shall assume, as pointed by the Supreme Court, that there is likelihood of bias on the part of the then Chairman of the Service Commission, taking consideration of the human probabilities and the ordinary course of human conduct, in favour of his children. But the question is, having regard to the process of selection, which is already indicated earlier in this Judgment, which involves three-tier filtering; of them, the first two, being written examinations, can it be really concluded that there is a likelihood of the then Chairman of the Service Commission influencing the selection process. It must be remembered that the selection process is not yet complete and the Chairman did not survive in office to influence the whole process of selection, even if we believe, having regard to the normal course of human conduct, that he would have influenced the selection process in favour of his two sons. As a matter of fact, we have already noticed that one of his two sons dropped out half way through. Apart from that unlike in A.K. Kraipak's case (9 supra), the relative merits of all the contesting candidates in the present case are assessed by a written examination system. Therefore, the situation prevailing in the present case is substantially different from the factual situation in A.K. Kraipak's case (9 supra). The possibility if any of the then Chairman influencing the selection process in our opinion is very remote. In the absence of any clear material that the then Chairman of the Service Commission did in any way influence the selection process while he was in office, we are not inclined to set-at-naught the entire selection process in which approximately about 35,000 candidates participated. Applying the principle laid down in A.K. Kraipak's case (9 supra) to the cases such as the one on hand with the discernible difference in the factual matrix, in our opinion would be productive of more mischief than good in the larger public interest. We therefore reject the said submission and the writ petition is liable to be dismissed.
78. The last issue that is required to be considered in this case is the issue raised in W.P.No.5144 of 2005.
79. The learned Counsel for the petitioner, Sri J.R. Manohar Rao, submitted that by conducting two separate preliminary screening tests for the two sets of applicants, i.e., those who applied pursuant to the original notification dated 21-11-2003 and the supplemental notification dated 7-8-2004, different yardsticks were applied for the purpose of assessing their suitability to take the main examination and therefore, is violative of Article 14 of the Constitution of India. The learned Counsel relied upon a Judgment of the Supreme Court in State of Karala v. Kumari T.P. Roshana and Ors. .
80. Before we examine the ratio of the said Judgment and decide whether it is applicable to the facts of the present case, we are only tempted to quote a few lines from the very same Judgment to understand the essence of Article 14 of the Constitution of India. A profound statement on the scope of Article 14, was made by Justice Krishna Iyer, who delivered the Judgment for the Bench, in his inimitable style:
Article 14 is not a voodoo, which visits with invalidation every executive or legislative fusion of things or categories, where there are no pronounced inequalities. Mathematical equality is not the touchstone of constitutionality.
81. The learned Judge relied upon the observations that...only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity" made in an earlier decision of the Supreme Court in State of J and K v. Triloki Nath Khosa .
82. From the above, we understand that there must be a substantial difference between the two classes of objects sought to be treated differently by law and such classification must promote some relevant goal. Trivial differences in two sets of objects sought to be treated alike by law, do not invite the wrath of Article 14 of the Constitution. In substance, it is not the mathematical equality in case of either a classification or grouping together, that decides the constitutionality in the context of Article 14 of the Constitution of India.
83. The factual background of this abovementioned case insofar as it is relevant is: In the matter of admission to various medical colleges run by the State, the students coming from different areas of the State who had studied in different colleges affiliated to different universities of the State are treated as one class having a basic qualification to seek admission into the medical course and admissions are made on the basis of the marks obtained by them in the qualifying examination conducted by the University to which the student belonged to. The challenge before the court was that the students coming from different areas studying in different colleges who went through different patterns of examination system and evaluation made by different examiners cannot be brought together for the purpose of ascertaining their relative merits to seek admission into the medical courses. The Kerala High Court found such grouping unconstitutional as violative of Article 14. The High Court held....
in the case of examinations conducted by two or more universities. It is well known that sometimes questions are tough and sometimes valuation is liberal. Quite often valuation is guided by the percentage of pass expected in an examination. Moderation is also resorted to. While all these may work uniformally on all the candidates appearing for the same examination in the same University that could not be the case with regard to the candidates appearing for the same qualifying examination from another University writing different papers, which are valued by a different set of examiners. When comparison is between two candidates passing out from two Universities taking respective examinations of the Universities the equation of candidates in matters where near-accuracy is called for becomes difficult. May be the examinations are similar and the valuation also is similar, but the other factors cannot be ruled out. If admissions to courses like medicine and engineering is to be on the basis that the best talent is to be preferred, where students from more than one University passing the qualifying examination have to compete some method other than comparing their marks should be devised to determine their comparative talent." The Supreme Court was examining the correctness of the said conclusion of the Kerala High Court. The Supreme Court held in this context as follows:
17. The various element in marking and moderation of marks may be a fact of life, but too marginal to qualify for substantial difference unless otherwise made out. Indeed, there may be differences among the colleges under the same University, among the examiners in the same University. Such fleeting factors or ephemeral differences cannot be the solid foundation for a substantial differentiation which is the necessary pre-condition for quashing an executive or legislative act as too discriminatory to satisfy the egalitarian essence of Article 14. The functional validation of the writ jurisdiction is an appropriate examination of the substantiability of the alleged disparity. We do not, however, proceed finally to pronounce on this point with reference to the two Universities since nothing is available before us, or, for that matter, was before the High Court to warrant a fair conclusion on the issue...
(emphasis supplied)
84. However, the Supreme Court went on to direct to implement a scheme of "uniform curricula and common examination system and allied matters in such manner that there will be no inequality as between students emerging from one university and the other within the State.
85. In the said Judgment, the Supreme Court never laid down an absolute principle that wherever two different examinations are conducted for two different sets of candidates who are competing for the same opportunity, be it employment or education, there is a violation of Article 14. The ultimate direction issued by the Supreme Court in the said decision to evolve a uniform syllabus and a common examination system is only a direction to achieve the ideal state of affairs. That the core principle we understand from the decision is that the constitutional requirement of equality before law is not violated in every case where there is either a fusion of slightly different things or a classification of thing where there is a substantial difference. In all such cases, all the relevant factors like the difference between the two classes which are sought to be fused or segregated the purpose sought to be achieved by such an exercise, the rationality of the said purpose, the nexus or the need to resort to such an exercise are required to be examined.
86. In the present case, no doubt two separate preliminary screening tests were held for the two sets of applicants mentioned earlier. From the record, it appears that the pattern of examination on both the occasions is the same. In both the examinations, the candidates were required to answer 150 questions in a period of 21/2 hours time. The examination on both the occasions is what is popularly known as an "objective type of examination" i.e., for each question, four probable answers are indicated in the answer sheet supplied by the Service Commission, the candidate is required to identify the accurate answer for each of the questions. The whole process is conducted by a system known as "OMR". Therefore, the pattern is the same on both the occasions. No doubt the questions would have been different. But the questions pertain to the same areas. It appears from the record that the candidates are subjected to test in the areas of general studies and mental ability. In other words, general knowledge and alertness of mind.
87. Apart from that the background facts which necessitated the conduct of two different preliminary screening tests as already noticed - they are that initially the State decided to fill up only a limited number of posts in Group I Services and invited applications through the Service Commission from the graduates who acquired the qualification of graduation by the date of the notification i.e., 21-11-2003 and with a further condition that the applicants should not have crossed age of 33 years as on 1-7-2003. Subsequently, on a consideration of the fact that there was no direct recruitment to the post of Group I services for a long period of almost six years, thereby denying a substantial number of graduates an opportunity to compete for Group I service on the ground that in the interregnum (between the previous recruitment conducted in 1998 and the date of the notification i.e., 21-11-2003) they became age barred, the State decided to provide an opportunity to such age barred graduates also, a consideration, which cannot be called by any standard irrational or irrelevant, the validity of which is already upheld by us.
88. Another important aspect is that after the notification dated 21-11-2003, the State came forward with a proposal to fill up 223 more posts in the Group I services. Nothing in law compelled the State or the Service Commission to conduct a common selection process for all the posts notified on two occasions. If the State were to undertake a separate recruitment process for the above mentioned 223 posts and prescribe a higher upper age limit thereby enabling all those graduates who became age barred between 1998 and 2003 and all those who acquired the academic qualification of the graduation by the date of such above mentioned later recruitment, such a system would have enabled both the sets of applicants i.e., applicants who responded to the 1st notification as well as the applicants who responded to the 2nd notification herein to participate in such recruitment process. Notwithstanding the fact that the applicants who responded to the 1st notification had already gone through the process of selection they could still have taken a chance in the 2nd recruitment process. Such of those candidates who take the chance in both the recruitment process who became successful in the 1st recruitment process and hypothetically if unsuccessful in the 2nd recruitment process cannot complain that the 2nd recruitment processes is illegal. A reversal of this example between the two sets of candidates in our view also would not provide any basis for the unsuccessful candidates to complain against the other set of candidates.
89. The whole purpose of conducting a second preliminary screening test is to provide an opportunity for those graduates, who could not participate in the selection process, pursuant to the 1st notification, by virtue of the fact that they became age-barred and they never had in the past and would never have in the future an opportunity to compete for any Group-I service. They form a class by themselves. The decision of the State to provide an equitable opportunity to such a class in the matter of employment under the State having regard to the fact that the recruitment of the Group-I service is not conducted with any definite periodicity is a legitimate decision and consequently a process of selection had to be evolved. Hence, the State held a 2nd preliminary screening test confined only to such class of candidates. We therefore, do not find any illegality in the conduct of two separate preliminary screening tests by the respondents. We do not see any merits in the writ petitions and the same are dismissed.
90. Dealing with the first set of writ petitions, we came to the conclusion that either the Tribunal or this Court would have justified in an appropriate case, in compelling the State to notify all the available vacancies under Group-I services. However, we postponed the consideration of the question whether in the present case, such a direction is to be given or not. In view of our conclusion that the assertion of the writ petitioners that a large number of posts of Group-I services, which are required to be filled up by direct recruitment, are already filled up on temporary basis by promotion of the in service candidates, in violation of the relevant rules went un-rebutted and the further conclusion that it is not a case where the State took a policy decision not to fill those posts, we are of the opinion that a direction to the State to fill up all the available posts as on the date of the 2nd notification i.e., 7-8-2004, is normally required to be issued. We are supported by an authority in S. Ramanathan v. Union of India (2001) 2 SCC 118 and the relevant paragraph is extracted hereunder:
6. The question, therefore arises for consideration is as to what is the effect of Rule 4(2) of the Cadre Rules as it stood prior to its amendment in the year 1995 and if there has been an infraction in the matter of compliance of the said Rule, what direction could be given to the appropriate authority? The Cadre Rules are statutory in nature, having been framed by the Central Government in exercise of powers under subsection (1) of Section 3 of the All India Services Act, 1951. The language of Sub-rule (2) of Rule 4, as it stood prior to its amendment is rather peremptory in nature and thus it requires that the Central Government has to re-examine the strength and composition of each cadre in consultation with the State Government concerned and make such alteration therein, as it deems fit. It is no doubt true that an infraction of the aforesaid provisions does not confer a vested right with an employee for requiring the court to issue any mandamus. But it cannot be denied that if there has been an infraction of the provisions and no explanation is forthcoming from the Central Government, indicating the circumstances under which the exercise could not be undertaken the aggrieved party may well approach a court and a court in its turn would be well within its jurisdiction to issue appropriate directions, depending upon the circumstances of the case....
(emphasis supplied)
91. However, the fact remains that during the pendency of the OAs before the tribunal the State notified another 223 vacancies and even after the second notification, the State identified another 39 vacancies i.e., 16 vacancies during the pendency of the matter before the Tribunal and 23 vacancies during the pendency of the matter before this Court. Substantially, the purpose of the writ petitioners is achieved though there is some dispute regarding the fact that there are some more vacancies available in the said Group-I posts. In the absence of any specific material on record, such a dispute cannot be decided in this case. We do not see any reason to interrupt the process of recruitment on a mere speculation that there are some more posts falling in the Group-I service, still required to be filled up with direct recruits as on the date of the second notification. Such an interruption would neither benefit the large number of graduates, who are awaiting employment opportunities, nor would it be beneficial to the administration of the State nor to the general public in any way.
92. Having regard to the entire background of this case, we are of the opinion that the ends of justice would be met in the present case by directing the State to complete the recruitment process to all the posts identified so far including those posts, which were identified during the pendency of the litigation, notwithstanding the fact that they were not included in either of the notifications.
93. If, any further vacancies are available as on the date of the second notification and are identified subsequently, those vacancies have to be filled up by a separate recruitment process in accordance with law.
94. This entire episode is not unique. This Court has seen similar situations in varying magnitudes on different occasions. All this fiasco is a consequence of the irregularity in undertaking the recruitment process, hence a lot of litigation, uncertainty and delay in the process of recruitment. The same could be avoided if only the State undertakes the recruitment process at definite intervals of either a year or two, a decision to be taken by the State with due regard to all the relevant factors.
95. Irrespective of the fact as to what is the periodicity of these recruitments, in our view, the State must take necessary steps to have the data of the vacancies that arise as on 1st July of every succeeding year. Respondents are, therefore, directed to make appropriate Rules in this regard and devise appropriate machinery for the collection of the said data. We acknowledge the invaluable assistance rendered at the Bar by the learned Advocate General, learned Government Pleader for Services-II Sri A. Giridhar Rao, Sri M. Vijay Kumar, learned Standing Counsel for the APPSC, Sri Nuty Ram Mohan Rao, Sri B. Adinarayana Rao, Sri J.R. Manohar Rao, Sri M. Surender Rao and Sri M. Kesava Rao, learned Counsel appearing for the writ petitioners in this batch of writ petitions.
96. The Writ Petitions are disposed of as indicated above. No costs.