Andhra HC (Pre-Telangana)
Y. Sekhar vs Govt. Of A.P. And Others on 8 March, 2000
Equivalent citations: 2001(2)ALD693
ORDER
S.B. SINHA, CJ
1. The petitioner herein along with other five students questioned an order dated 1-1-2000 being G.O. Ms. No.1, Health, Medical and Family Welfare Department before A.P. Administrative Tribunal on the ground that the same is violative of the Constitutional guarantees as regards the protection of rights of the Scheduled Caste and Scheduled Tribe candidates as also Rule 22 of A.P. State and Subordinate Service Rules.
2. Originally, the applicants were six in number before the Tribunal. But this writ petition has been filed by only one of them. They were, at all material times and still are studying in BUMS course. 16 vacancies in the reserved category belonging to Scheduled Castes and nine vacancies belonging to Scheduled Tribes were notified in Indian Medicine and Homoeopathy Department. By reason of the impugned GO, 25 vacancies of the post of Medical Officer (Unani) reserved for Scheduled Castes are sought to be filled up by open category candidates on the ground that on earlier three occasions, no suitable reserved candidate was available. The learned Tribunal rejected the said application inter alia on the ground that the petitioners have no locus standi. It further came to the conclusion that having regard to the fact that equal number of future vacancies will be filled by the Scheduled Caste and Scheduled Tribe candidates, no prejudice has been caused to them.
3. The learned Counsel appearing on behalf of the petitioner inter alia submitted that having regard to the Constitutional provision contained in clause (4) of Article 15 of the Constitution, it was obligatory on the part of the respondents herein to continue to keep reserved the posts for being filled up by the candidates belonging to the Scheduled Castes and Scheduled Tribes and the purported de-reservation thereof by reason of the impugned memo is ultra vires. It was submitted that having regard to the fact that if such a course of action is resorted to, the State is obligated to follow a particular procedure which has not been done in the instant case.
4. The learned Counsel appearing on behalf of the respondents on the other hand submitted that the petitioner still being a student and is to qualify for holding the said post, this writ petition is not maintainable at their instance.
5. It is not in dispute that the said 25 posts which were to be filled up by SC and ST candidates, could not be filled up continuously on three occasions due to non-availability of suitable candidates in the said category. Having regard to the aforementioned situation, the State had no other option but to throw the same to the open category.
6. A bare perusal of the aforementioned GO dated 1-1-2000 clearly shows as to how despite the fact that notifications had been issued on 4-3-1992, 16-3-1997 as also again in 1999, the reserved vacancies could not be filled up and had been carried forward year after year from 1990 onwards. In that situation, it was directed in the GO.:
"Government after careful examination hereby permit the Commissioner, Indian Medicines and Homoeopathy to fill up the above vacancies reserved for SC/ST candidates by the candidates belonging to open category. Future vacancies coming under open category shall be reserved to SC/ST category to the extent the number of posts now filled by OC candidates.
The Commissioner, Indian Medicines and Homoeopathy is requested to ensure that out of total marks of 100, 90 marks shall be allotted for the marks obtained in the qualifying examination (BUMS) and 10 marks for the waiting period at the rate of 1 mark for each year of waiting after completion of BUMS examination, subject to maximum of 10 marks. Posting of candidates will be on counselling basis."
7. It is now a well settled principle of law that despite the Constitutional provisions contained in clause (4) of Article 15 of the Constitution, it is not obligatory on the part of the State to lay down any rule for reserving certain posts for the SC, ST or Backward Classes candidates. The said provision is merely an enabling one.
8. It is further a well settled principle of law that a writ Court will not exercise its extraordinary jurisdiction under Article 226 of the Constitution although it may be lawful to do so.
9. In "Administrative Law" 7th Edition by Wade and Forsyth, it is stated:
"The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another. A common case where an order, however void, becomes valid is where a statutory time limit expires after which its validity cannot be questioned. The statute does not say that the void order shall be valid; but by cutting off legal remedies it produces that result."
10. A part of the said passage from 6th edition of the same treatise had been quoted with approval by the Apex Court in State of Punjab v. Gurudev Singh, , in the following terms:
"Apropos to this principle, Prof. Wade states: "the principle must be equally true even where the brand of invalidity' is plainly visible; for there also the order can effectively be resisted in taw only by obtaining the decision of the Court (see: Administrative Law 6th Ed.p.352) Prof. Wade sums up these principles:
"The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another".
11. In State of West Bengal v. Anil Chandra Chowdhury, 2000 (1) CLJ 39, a Division Bench of Calcutta High Court followed the said decision stating as under:
"Furthermore, the appellant herein cannot collaterally be permitted to question the order dated 23-12-1996 passed by the Sub-divisional Land and Land Reforms Officer, Cooch-Behar which was the subject-matter of any proceeding before any higher Court. The appellant had not also preferred any appeal against the said order.
"5. In the instant cases, the respondents were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them the order of dismissal was illegal, inoperative and not binding on them. They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs.
6. But none the less the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Council, (1956) AC 736 at p.769 Lord Redcliffe observed:
"An order even if not made in good faith is still an act capable of legal consequences, it bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
12. Furthermore, it has not been contended that the aforementioned policy decision was adopted by way of a legislation. If such policy decision was adopted by the State in exercise of its power under Article 162 of the Constitution, such a policy decision can also be modified or withdrawn.
13. In K.P. Perumal v. A&N Administration, 2000 (1) CHN 866, it was observed:
"The Lieutenant Governor is merely a person delegated with functions of an Administrator in terms of Article 239 of the Constitution of India. He had not been conferred any power to make any law which is exclusively within the domain of the President. However, he can issue executive instructions in such fields and in respect of the matter which is not covered by any legislation. An executive instruction issued or a policy decision taken in favour of a trespasser would be subject to fulfilment of the conditions imposed thereby. Undoubtedly, the same can be modified, amended or rescinded. A policy decision taken may even be withdrawn".
14. A policy decision taken by the State may not be interfered with unless the same is patently arbitrary as held in Centre for PLI v. Union of India, .
15. It is also a well settled principle of law that in a given case, the Court may refuse to grant any relief under Article 226 of the Constitution having regard to the larger public interest. In the instant case, the petitioner is a student. Five other students who were applicants in the Original Application before the Tribunal along with the petitioner, had not joined him in the present writ petition.
16. When or at all they would come out successful and be qualified to apply for the posts is not known. The posts which were reserved could not be filled up for a long time. By reason of the said process, a larger number of persons have suffered. The Court exercising its jurisdiction under Article 226 of the Constitution having regard to the larger public interest, cannot direct that the said posts remain unfilled up for a further period. A policy decision adopted by the State in the fact situation obtaining in the instant case must be held to be fair and reasonable inasmuch as such posts would be filled up from amongst the reserved category candidates.
17. For the aforementioned reasons, we do not see any merit in the writ petition. The writ petition is accordingly, dismissed. No costs.