Andhra HC (Pre-Telangana)
K. Dayakar Reddy And Another vs Secretary To Govt. Of A.P., School ... on 7 March, 2001
Equivalent citations: 2001(2)ALD686
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER S.B. Sinha, CJ 1. These writ petitions being inter-related were taken up for hearing together and are being disposed of by this common judgment. 2. The sole question that arises for consideration in these writ petition is as to whether any reservation to Ex-servicemen in the matter of appointment to the category of Secondary Grade Teachers in the A.P. School Educational Subordinate Service is applicable in view of reservation being provided for to Ex-servicemen in A.P. State and Subordinate Service Rules notwithstanding the fact such a special representation has not been provided for in the A.P. Educational Subordinate Service Rules? 3. The petitioners in all these 'writ petitioners are Ex-Servicemen and qualified to hold the post of Secondary Grade Teacher (SGT): Pursuant to a notification issued by the respondents dated 4-7-2000 for recruitment to SGTs to be conducted by the District Selection Committees, they applied for the same claiming reservation under Ex-Servicemen quotas. As the respondents authorities declined to receive their applications, they filed OA Nos.4294, 3990 and 4004 of 2000 respectively before the Andhra Pradesh Administrative Tribunal. The prayer made OA No.20187 reads thus: "It is therefore prayed that this Hon'ble Tribunal may be pleased to declare the action of the respondents in not receiving applicants applications on the ground that there is no special reservation or age relaxation in favour of Ex-Servicemen in the notification issued on 4-7-2000 calling for applications for the post of Secondary Grade Teacher or School Assistant as arbitrary, illegal, unjust and contrary to the instructions of the 1st and 2nd respondents and violative of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India and direct the respondents to reserve 2% of the vacancies in favour of Ex-Servicemen as contemplated under Rule 22 and to receive the applications of the applicants, permit them to appear for the written examination to be held on 17th/18th August, 2000 and appoint them to the posts of Secondary Grade Teacher/School Assistants and pass such other order or orders as are deemed fit and proper in the circumstances of the case". The Original Applications were disposed of on 25-7-2000 and 21-7-2000 directing the authorities to receive their applications and permit them to participate in the selection process in pursuance of DSC Notification. Thereafter, the petitioners filed review applications being MA Nos.2669, 2267 and 2248 of 2000 respectively to review the orders passed in the OAs on the ground that the authorities are not extending the special representation provided for in Rule 22 of the General Rules read with Rule 4 of the Special Rules issued in G.O. Ms. No.538 Education (Service II) Department, dated 20-11-1998. It appears that the learned Tribunal has considered such a question in OA No.5412 of 2000 and by order dated 28-9-2000 dismissed the said application holding that the principle of special reservation to the category of Ex-Servicemen is not contemplated by the Government in the Special Rules issued in G.O. Ms. No.538, dated 20-11-1998 and that General Rule 22 would be applicable only in the case of appointments to clerical posts including Typists, under Group II and Group IV and also A.P. Police Service Rules and that for other posts a provision must exist in the concerned Special Rules. The relevant part of the order in OA No. 5412 of 2000 reads as follows: "Having heard both the learned Counsel for the applicant and the learned Government Pleader, and on careful reading of the General Rule 22, we are of the clear opinion that the Government did not make any provision for any Special Reservation for Ex-Servicemen while making recruitment to the Teachers in DSC-2000 and this may be seen from the fact that G.O. Ms. No.538 does not provide for the same. It is also seen from the General Rule 22 of A.P. State and Subordinate Service Rules, that only in case of appointments to clerical posts including Typists coming under Group-II and Group-IV and also for Andhra Pradesh Police Service Rules, the Special Reservation for Ex-Servicemen would automatically apply. For any other post, if the Special Reservation has to be applied, such provision must be existing in the Special Rules or Ad hoc Rules or General Rules governing such posts. In the absence of any such specific provisions governing the recruitment to such posts, it cannot be said Special Reservation for Ex-servicemen is automatically applicable by virtue of General Rule 22. In view of the above observations, we hold that the principle of Special Reservation to the category of Ex-Servicemen-women is not contemplated by the Government and accordingly, it is not provided for. Hence, the OA is devoid of any merits and it is accordingly dismissed. Interim orders granted earlier are vacated." Following the same, Review MA No.2669 of 2000 was dismissed on 12-10-2000 and the other review applications filed by the petitioners in WP Nos.20194 and 20364 of2000 were dismissed by common order dated 28-9-2001. 4. In these writ petitions, the petitioners, inter alia, questions the legality and validity of the order in OA No.5612 of 2000. 5. The learned Counsel appearing for the petitioners, inter alia, submitted that the matter relating to grant of special reservation as contained in Rule 22 of the General Rules has undergone amendment by G.O. Ms. No.65, GA (Services D) Department, dated 15-2-1997. Learned Counsel would contend that Rule 22 of the General Rules are supplementary to the Special Rules framed under the proviso to Article 309 of the Constitution of India and as such Rule 22 of the General Rules and Rule 4 of the Special Rules have to be read together. 6. Rule 22 of the General Rules as amended by G.O. Ms. No.65 reads as follows: "22. Special Representation (Reservation) :--(1) Reservations may be made for appointments to a service, class or category in favour of Scheduled Castes, Scheduled Tribes, Backward Classes, Women, Physically handicapped, Meritorious Sportsmen, Ex-Servicemen and such other categories, as may be prescribed by the Government from time to time, to the extent and in the manner specified hereinafter in these rules or as the case may be, in Special Rules. The principle of reservation as hereinafter provided shall apply to all appointments to a service, class or category- (i) by direct recruitment, except where the Government by a General or special order made in this behalf, exempt such service, class or category; (ii) otherwise than by direct recruitment where the Special Rules lay down specifically that the principle of reservation insofar as it relates to Scheduled Castes and Scheduled Tribes only shall apply to such services, class or category to the extent specified therein. (2)(a) The unit of appointments for the purpose of this rule shall be one hundred vacancies, of which fifteen shall be reserved for Scheduled Castes, six shall be reserved for Scheduled Tribes, twenty five shall be reserved for the Backward Classes and the remaining fifty four appointments shall be made on the basis of open competition and subject to Rule 22-A of these rules. (b) Out of fifty four appointments to be made on the basis of open competition, three appointments shall be reserved for direct recruitment of the physically handicapped persons. (c) In the case of appointments to clerical posts including the posts of typists i.e., in Group II and Group IV services and in the case of posts in the Andhra Pradesh Police Subordinate Service, to which the principle of reservation of appointments applies, out of fifty four, as the case may be, fifty one appointments to be made on the basis of open competition, two appointments shall be reserved for direct recruitment of Ex-Servicemen. (d) In the case of appointments to the posts of Senior Assistants, Junior Assistants, Junior Stenographers, Typists and Record Assistants in the offices of Heads of Departments, Assistant Section Officers, Typist-cum-Assistants, Junior Stenographers and Record Assistants in the Secretariat to which the principle of reservation of appointments applies, out of fifty four, as the case may be, forty-nine appointments to be made on the basis of open competition, one appointment shall be reserved for direct recruitment of meritorious sportsmen : Provided that the claims of members of the Scheduled Castes, Scheduled Tribes, Backward Classes, Women and the Physically handicapped persons or the Ex-Servicemen as the case may be, shall also be considered for the remaining appointments which shall be filled on the basis of open competition, the number of appointments reserved for that category shall in no way be affected during the period the reservation for that category is in force. (e) Appointments under this rule shall be made in the order of rotation specified below in a unit of hundred vacancies. XXX XX Provided that: (1) In the case of appointments to a post referred to in sub-rule (c), the 12th and 37th turns in each unit of hundred vacancies shall be reserved for Ex-Servicemen. However, wherever the special or ad hoc rules provide that there shall be no reservation for ex-servicemen or if a qualified and suitable candidate is not available for ex-servicemen, the turn allotted to ex-servicemen shall be deemed to be allotted to open competition. xx xx xx" 7. Rule 4 of the Special Rules issued in G.O. Ms. No.538, dated 20-11-1998 reads as follows: 4. Reservation of appointments :- (a) The rule of special representation (General Rule 22) of A.P. State and Subordinate Services shall, apply to appointment by direct recruitment to any post as amended from time to time. (b) In the matter of direct recruitment to any category of any class 33 1/3% of posts in each category of OC, BC A, BC B, BC C, BC D, SC, ST, PH and Ex-service personnel shall be reserved for women. (c) Appointment in institutions specially provided for women: XX XX X (d) Government orders issued from time to time in regard to reservation of appointments shall be applicable". The petitioners have referred to Memo. No.3912/ESP/Services VI-A1/97-4, dated 5-12-1997 issued by the Government giving clarification as regard the recruitment of Teachers, 1996 which is to the following effect: "Sub: Recruitment of Teachers, 1996-Implementation of Ex-Servicemen quota-Clarification-Regarding. Ref: From the C & DSE Hyd. Lr.Rc. No.2673/C2/97, dated 24-8-1997. With reference to the letter cited, the Commissioner and Director of School Education is informed that since Rule 22 of Andhra Pradesh State and Subordinate Service Rules have been amended in G.O. Ms. No.65, General Administration (Ser.D) Department, dated 15-2-1997, providing special reservation for appointments to all classes of categories including Ex-Servicemen, he is requested to implement the same and incorporate the category of Ex-Servicemen in regard to reservations in the posts for which notification to be issued by him in future. The above rule will have prospective effect only. M.V.P.C. Sastry Secretary to Government. In enclosing a copy of the Government above, all the District Educational Officers in the State are requested to take necessary action in the matter. P.C. Ramaswamy For Director of School Education". 8. By letter dated 27-6-2000, the Commissioner and Director of School Education sent proposal to the Secretary to Government, Education (Ser.VI) Department, Government of Andhra Pradesh, Hyderabad with regard to reservation to Ex-Servicemen which reads as follows: "Sub; Teachers Recruitment, 2000-Reservation to Ex-Servicemen in recruitment-Proposals submitted-Regarding. Ref: 1. This Office letter Rc.No.1040/ C2-4/2000, dated 29-4-2000. 2. Govt. Orders Rt.No.268, Edn., dated 1-6-2000. In continuation of this office letter first cited and with reference to the Government Orders 2nd cited I wish to submit that proposals for providing reservation to Ex.Servicemen in the ensuring Teachers Recruitment, 2000 was submitted in my letter 1st cited. Government in their orders 2nd cited have asked for a proposal for according weightage in selections to such candidates. I, therefore, request the Government kindly to provide 2% General Reservation to Ex-Servicemen in the ensuing Teachers Recruitment, 2000 instead of weightage as per the proposals of this Office in the reference first cited at an early date. Early orders are solicited in the matter. Yours faithfully, For Comm. and Director of School Education". Reservation in employment to some categories of persons is covered by Article 16 of the Constitution of India. In view of the pronouncements of the Apex Court in catena of decisions, there cannot be any doubt that clause 4 of Article 16 is only an enabling provision and the same does not confer any right. In Ajit Singh-III v. State of Punjab, , a Constitution Bench of the Apex Court, on an application filed for review of its decision in Ajit Singh-II v. State of Punjab, , held: 3. In Ajit Singh II v. State of Punjab it was stated (at pp 229-30) relying upon earlier judgments starting from 1963, that Article 16(4) was only an enabling provision and did not impose any constitutional duty nor confer any fundamental right for reservation. The observations at p.691 by Jeevan Reddy, J., in Indra Sawheny (1992 Supp. (3) SCC 217) relied upon in the review applications do not deal with the above issue. It was the view of two Constitution Bench judgments of this Court, one of 1963 in M.R. Balaji v. State of Mysore and another in 1968 in C.A. Rajendran v. Union of India and also two-three judgments of this Court in P & T Scheduled Caste/Tribe Employees' Welfare Assn. (Regd.) v. Union of India and State Bank of India Scheduled Caste/Tribe Employees' Welfare Assn. v. State Bank of India that Article 16(4) was only an enabling provision. The view was nowhere dissented in Indra Sawhney much less at p.691 by Jeevan Reddy, J.
4. It appears to us that all the nine Judges in Indra Sawheny were of the same view that Article 16(4) was not in the nature of a fundamental right and was only an enabling provision. In this connection, reference may be made with advantage to the view of Jeevan Reddy (at pp.667-735) referring to Subba Rao, J, that Article 16(4) was a provision conferring a "power" and referring to Article 16(1) alone as a guarantee and not to Article 16(4); to the view of Sawant, J. (at p.517, para 43(4), Pandian, J. (at p.407, para 168), Thommen, J. (at p.449), para 282), Sahai, J. (at p.580) with whom Kuldip Singh, J, agreed - all expressly stating that Article 16(4) was only an enabling provision. Thus, the majority of the learned Judges expressly stated that Article 16(4) was an "enabling provision". Merely because the reservation for Backward Classes was created as a reasonable classification and justified at p.691, that does not detract from the view that Article 16(4) was only an enabling provision".
Yet again in M.G. Badappanavar and another v. State of Karnataka and others, 2001 (1) Supreme 306, Jagannadha Rao, J., speaking for a Three Judge Bench reiterated the same view.
9. If a service has been constituted in terms of statutory rules framed under proviso to Article 309 of the Constitution of India, only because some provisions had been made in the A.P. State and Subordinate Service Rules providing for special representation to Ex-Servicemen, the same by itself cannot be a ground for coming to the conclusion that the policy of special representation to Ex-Servicemen has been extended automatically in relation to A.P. School Educational Subordinate Service also. It is not correct to contend that by reason of the notification dated 15-2-1997 merely supplementary provisions have been made to Rule 22 of General Rules. It is also not correct to contend that by reason of various Government Orders only the mode and manner of giving effect to such reservation policy was required to be classified. G.O. Ms. No.65 would have been applicable for the purpose of reservation to Ex.Servicemen in relation to recruitment to Secondary Grade Teachers if the same had been provided for in the Special Rules. But as noticed hereinbefore, as no provision having been made in the Special Rules of recruitment, the said question does not arise. As has been rightly held by the Tribunal as quoted supra, provision as regards special reservation for Ex-Servicemen had to be specially made in the rules and the same cannot be inferred as Rule 22 of the General Rules applies only in case of appointments to certain posts mentioned therein and also A.P. Police Service, but the same would not ipso facto apply in the case of School Educational Subordinate Service.
10. Sub-rule (1) of Rule 22 of the General Rules clearly state that the special representation provided therein to various categories shall be made applicable to a service, class or category to the extent and in the manner specified in the General Rules or in the Special Rules. As noticed hereinbefore, Rule 4 of the Special Rules relating to reservation appointments in A.P. School Educational Subordinate Service did provide that Rule 22 of the General Rules would apply to appointment by direct recruitment. But, as can be seen from Rule 22(2)(c) of the General Rules that in the case of appointments to clerical posts including the posts of typists in Group II and Group IV services and in the case of A.P. Police Subordinate Service, two appointments shall be reserved for direct recruitment of Ex-Servicemen out of 54 appointments to be made on the basis of open competition. The posts of SGTs are not covered by the General Rule 22. Therefore, the rule of special representation mentioned in Rule 4 of the Special Rules cannot be understood to mean that the special representation is applicable to Ex-Servicemen also for the purpose of recruitment to SGTs. Rule 22 as provided in the Special Rules is applicable with regard to other categories of special representation. General Rule 22 has restricted the applicability of special representation to Ex-Servicemen to particular categories of service. However, it is not a bar to make any special representation to Ex-Servicemen in the Special Rules. But, the Special Rules in question, as noticed hereinbefore, have not provided for such reservation to Ex-Servicemen. The letter dated 5-12-1997 addressed by the Secretary to Government to the Commissioner and Director of School Education clearly indicate that no reservation has been provided for in the Special Rules in relation to Ex-Servicemen and the Government requested the Commissioner only to incorporate the category of Ex-Servicemen in the notification to be issued in future. Therefore, in the absence of any reservation provided for in the Special Rules, the petitioners cannot claim any reservation under the category of Ex-Servicemen by application of General Rule 22. We are further of the opinion that it is only the Slate Government which can provide for such reservation by making necessary amendment to the Special Rules. The question of violation of Articles 14 and 16 also does not arise as it is not the case of the petitioners herein that persons similarly situated were extended the benefit of special representation in the matter of appointment to S.G. Teachers.
11. For the reasons aforementioned, we find no merit in the writ petitions and they are dismissed accordingly. There shall be no order as to costs.