Andhra HC (Pre-Telangana)
Lakshmi Singa Reddy And Anr. vs Secretary, A.P. Public Service ... on 21 September, 2001
Equivalent citations: 2001(6)ALD1
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. The two petitioners herein being aggrieved by and dissatisfied with the judgment and order dated 7-5-1999 passed by the Andhra Pradesh Administrative Tribunal in OA No. 1862 of 1999 have filed this writ application. The petitioners pursuant to a notification issued on 27-6-1997 by the A.P. Public Service Commission filed their applications for appointment as School Assistants in Social Studies subject through Telugu medium. The relevant portion of the notification reads thus:
Advertisement No.4/1997 Applications are invited for appointment by Direct Recruitment to the post of School Assistants Name of the post Minimum/maximum Age as on 1-7-1997 Scale of pay School Assistants in A.P. 18-36 Rs. 2525 - 5390 Education Subordinate Service Details of vacancies Zone District Mathematics Science Social Studies VII 23 Hyd.44 46 63
Total 163 143 174 Note :--The medium of instructions (Urdu/Tamil/Oriya) is indicated above. All other vacancies are meant for Telugu medium only.
N.B. 1. The number of vacancies indicated is provisional and subject to the variation and confirmation by the appointing authority. The commission reserves the right to increase or decree the number of vacancies as may be reported by the appointing authority after the issue of this advertisement for the reasons recorded.
2. The recruitment will be processed as per the notification and also the rules and instructions issued by the Government from time to time.
3. The Rule of reservation to local candidates is applicable.
4. The rule of special representations viz., reservations to STs, SCs, BCs, etc., is applicable.
5. Reservation to Physically Handicapped Persons is subject to further instructions from Government. The nature and quantum of deformity must be specified by the Government Doctor (not below the rank of Civil Assistant Surgeon) and a certificate to that effect must be enclosed provided he/she is of sound health and active habits and the nature of defects or infirmity does not interfere with the discharge of duties expected of him/ her for the job.
6. The rule of reservation for woman candidates will apply to the extent of 33 1/3% of the posts in each category of OCs, BC-A, BC-B, BC-C, BC-D, SC-A, SC-B, SC-C, SC-D, STs and PHs as prescribed in G.O. Ms. No.65, GAB (Services-A) Department dated 15-2-1997 and G.O. Ms. No.68, Social Welfare (J1) Department dated 6-6-1997."
2. From the said notification, it would appear that 63 posts of School Assistants for Social Studies were to be filled up through Telugu Medium. However, by reason of the letter dated 27-3-1999 from the District Education Officer, the vacancy position has been reduced to 26 and they were sought to be filled up.
3. Purported to be on the basis of a revised vacancy position the vacancies in the social studies subject were reduced from 53 to 45. Allegedly 22 vacancies were increased in mathematics and one vacancy in science. Although no fresh advertisement was issued, allegedly, the same was displayed on the notice board of the Commissioner's office. It is not in dispute that in relation to Zone VII, reservation for locals and non-locals was considered in respect of the entire Zone VII. The bone of contentions in the writ petition are : (1) Whether in absence of any notification any vacancy could have been filled up in respect of teachers in social science through urdu medium; (2) whether the rules of reservation would apply subject-wise or in respect of all the vacant posts; (3) whether reservation to the SC/ST/BC, etc., should have been made subject-wise or the total vacancy-wise.
4. The factual matrix is not much in dispute. According to the petitioners the reservation policy should have been carried out as between locals and non-locals as also appointment from the reserved categories should have been made subject-wise and not on the entire vacancies.
5. Mr. A. Sudershan Reddy, the learned Counsel appearing on behalf of the petitioners inter alia submitted that having regard to the fact that vacancies were going to be filled up as School Assistants in several subjects, the reservation policy both as regards local and non-local as also reserved categories and open categories ought to have been made subject-wise. Reliance in this connection has been placed on Suresh Chandra Verma v. Chancellor, Nagpur University, .
6. It is not in dispute that the vacancies filled up for local and non-local for Telugu Medium would be as follows :--
Social Maths Science Total Local 16 17 21 54' Non-local 11 24 6 41 Total filed 27 41 27 95 * Local candidates divided for various categories.
OC BC-B BC-C BCD SC Total Social 5 3 1 4 3 16 Maths 4 4
-
-9 17
Science 10 5 4 2
-21
Total Category-wise 19 12 5 6 12 54
7. But if the reservation policy in relation to the entire vacancies is taken up for consideration it would be:
Medium Maths Science Social Total Telugu 44 31 26 Urdu 22 16 14 Total 66 47 40 153
8. The contention of the respondents, on the other hand, is that the Presidential Order as also Rule 22 of the A.P. State and Subordinate Services Rules, 1998 ('General Rules' for short) contemplate vacancy-wise reservation. Rule 22 of the rules reads thus:
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 the especial 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.
9. In Swesh Chandra Verma's case (supra) the Apex Court clearly held:
According to us, the word "post" used in the context has a relation to the faculty discipline, or the subject for which it is created. When, therefore, reservations are required to be made "in posts", the reservations have to be post-wise i.e., subject-wise. The mere announcement of the number of reserved posts is no better than inviting applications for posts without mentioning the subjects for which the posts are advertised. When, therefore, Section 57(4)(a) requires that the advertisement or the employment notice would indicate the number of reserved posts, if any, it implies that the employment notice cannot be vague and has to indicate the specific post, i.e., the subject in which the post is vacant and for which the applications are invited from the candidates belonging to the reserved classes. A non-indication of the post in this manner itself defeats the purpose for which the applications are invited from the reserved category candidates and consequently negates the object of the reservation policy. That this is also the intention of the Legislature is made clear by Section 57(4)(d) which requires the selection committees to interview and adjudge the merits of each candidate and recommend him or her for appointment to "the general posts" and "the reserved posts", if any, advertised.
10. The question whether reservation for local candidates should be applied subject-wise or not and whether statutory reservations under Rule 22 of the General Rules must be on the basis of the entire class service of School Assistants or subject-wise needs to be examined with reference to A.P. School Educational Subordinate Service Rules, 1992 (Special Rules 'for short') and the General Rules. The Special Rules promulgated under the proviso to Article 309 of the Constitution deal with various classes of posts in educational subordinate service. The post of School Assistant is Class-C of Category-I. The School Assistants are appointed by direct recruitment as well as by promotion from the category of Secondary Grade Teachers/Language Pandits Grade-II/Special Teachers and Instructors. As per Rule 5 read with the annexure appended to the rules a person to be qualified for being appointed as School Assistant by direct recruitment or by promotion must possess a Bachelors Degree in any subject and also B.Ed., Degree or equivalent qualification. As per Rule 2(2) the Educational Subordinate Service shall consists of the posts mentioned thereunder. As per Rule 4(A) the Rule of Special Representation under General Rule 22 shall apply to appointment by direct recruitment to any post. Rule 2 does not recognise School Assistants subject-wise. All the School Assistants are treated as 'one category of posts' and by virtue of Rule 4 of the Special Rules Rule 22 applies to all the posts of School Assistants.
11. A reading of Rule 22 shows that reservation for appointments to service, class or category in favour of SCs, STs and BCs etc., may be made as prescribed by the Government from time to time and such principle of reservation shall apply to all appointments to a service, class or category. A conjoint reading of Rules 2 and 4 of Special Rules with Rule 22(1) of the General Rules shows that the reservation is provided for all the posts of School Assistants together which form class-C of Category-I of the Special Rules.
12. Under A.P. Public Employment (Organisations of Local Cadres) Order, 1975 ('Presidential Order' for brevity) issued by the President of India under Article 371-D(1) and (2) 70% of the posts in local area are to be reserved for local candidates and 30% of the posts shall be unreserved. Even as per the Presidential Order the reservation is not subject-wise. It is in respect of all the posts, namely, the posts of School Assistants. A learned Single Judge of this Court in The Progressive Students Forum v. The University of Hyderabad, (unreported judgment dated 5-9-1992) in WP No.2238 of 1992 relied on a three-Judge Bench decision of the Supreme Court in University of Cochin v. N. Raman Nair, and held that reservation is to be made post-wise and not subject-wise. The learned single Judge observed as under:
The above decision in University of Cochin (supra) was not brought to the notice of the Bench consisting of two Judges in Dr. Suresh Chandra Verma (supra). I also find that Dr. Suresh Chandra Verma (supra) was decided almost entirely on the basis of phraseology used in Section 57(4)(a) of the Nagpur University Act. The Court held that the 'posts' used in the context has a relation to the faculty, discipline or the subject for which it was created and therefore reservations should be made post-wise/subject-wise. It was on this assumption that the Court held that mere announcement of the number of reserved posts did not serve the purpose of informing intending applicants of the subjects/departments in which reserved posts were available.
13. A Division Bench of this Court in an unreported judgment dated 23-12-1994 in WP No. 10953 of 1994 in Dr. Chandrayudu v. Sri Venkateswara University, Tirupati, considered the method of reservation with reference to an advertisement issued by Sri Venkateswara University. The University provided reservation group-wise treating Arts faculties as Group-I, Science faculties as Group-II and Engineering and Technology as Group-III. Having regard to the method of recruitment to be made in the University the Division Bench held that the reservation should be department-wise and not group-wise.
14. In Suresh Chandra Verma's case (supra) the word 'post' was interpreted with reference to Section 57(4)(a) of Nagpur University Act, 1974 and it was held that post used in the context has relation to the faculty, discipline or the subject for which it is created. A distinction must be drawn with regard to a post in the University and Post of School Assistant. Where there are separate faculties and departments for each subject a post in the context of University recruitment would certainly mean the post in relation to faculty or discipline and the same cannot be the case when the School Assistants are recruited. No doubt, School Assistants are appointed for each subject having regard to methodology subject in B.Ed. However, the notification on which reliance is placed only mentions that rule of special representation would apply and the same does not show that the reservation is subject-wise. Further, if reservation is resorted to subject-wise there would be possibility of defeating the policy of reservation itself. For instance, in any given recruitment year if there is only one post in a particular subject, for example Physical Education, Crafts etc., there cannot be any reservation. Likewise, if there is recruitment for only one post in a given year in a specified subject, reservation can be denied on the principle that there cannot be reservation when there is only one post. Therefore, it is reasonable to interpret the rule of reservation in the context as reservation in respect of all the posts of School Assistants and not subject-wise. Accordingly, we reject the submission of the learned Counsel for the petitioner. As submitted by the learned Counsel for the respondent 70% posts were reserved for local candidates and there was no breach of any rule in the Presidential Order.
15. It is nextly contended that though the respondent did not notify any posts of School Assistants (Social Studies) for Urdu Medium, 14 posts were filled up which is unsustainable. The learned Counsel for the respondent placed reliance on Note-1 in the Notification which is to the effect that number of vacancies indicated is provisional and subject to variation and confirmation by the appointing authority and the respondent-Commission reserved the right to increase or decrease the number of vacancies as may be reported by the appointing authority. The submission made by the learned Counsel for the respondent is misplaced. Immediately below the zone-wise vacancy position a note is appended to the effect that medium of instruction (Urdu/Tamil/Oriya) is indicated in the brackets and that all other vacancies are meant for Telugu Medium only. Initially, in Zone-VII, i.e., Hyderabad, 63 vacancies were earmarked for School Assistants (Social Studies) All these posts are meant for Telugu Medium only. Later by reason of an alleged letter dated 27-3-1999 from the District Educational Officer 63 posts were reduced to 26 posts. However, when recruitment process was completed, the respondent recruited three posts of School Assistants (Social Studies) of Urdu Medium out of 14 vacancies earmarked for Urdu Medium School Assistants (Social Studies). Is it constitutionally permissible to do so is the question before us.
16. The written submissions filed by Sri V. V. Prabhakar Rao, learned Standing Counsel for APPSC are silent on this aspect.
17. In the counter-affidavit filed by the Secretary of APPSC it is contended that initially 63 posts in Social Studies were notified as per requisition received from the concerned authority. The concerned authority while bifurcating the posts medium-wise indicated 14 posts for Urdu Medium and 26 posts for Telugu Medium and that the Commission filled up 26 posts for Telugu Medium and three posts for Urdu Medium, leaving the rest of vacancies under Urdu Medium as there are no candidates available. It is therefore admitted that three posts were filled up by Urdu Medium candidates though the posts were not advertised.
18. The learned Counsel for APPSC also placed before us a few documents. The documents placed before us do not contain the communication dated 27-3-1999 alleged to have been sent by the DEO. Though we directed him to produce entire records and file he has not produced the entire file. He only placed a 'reconstructed' file from other files which contains page numbers which are not in seriatim. The documents placed before us contain the letter No.2226/ B1/97 dated 9-11-1998 from the DEO, Hyderabad to the respondent giving the break up of 126 posts of School Assistants in Zone-VII. According to this letter, 24 posts of School Assistants (Arts) are for Telugu Medium, 14 posts are for Urdu Medium and 2 posts are for English Medium. This shows that even the counter-affidavit filed before this Court which was sworn on 25-4-2000 does not correctly depict the picture. We are left with the feeling that all is not well with the respondent. Initially they advertised posts, later they filled up the posts according to their whims and fancies. We also fail to understand when the posts of School Assistants (Arts) Urdu Medium were not advertised as to how the APPSC could get applications from Urdu Medium candidates. If only the APPSC had issued an addendum to the notification (Advertisement No.4/97) after receiving the letter dated 9-8-1998 from the DEO many more candidates with Urdu Medium qualification would have applied. A peculiar method was adopted by APPSC. Those recruitments per se are unconstitutional and illegal. In this connection it is apposite to extract the observations of the Supreme Court in B.S. Minhas v. Indian Statistical Institute, .
If the vacancy in the post of Director had been publicised as contemplated by bye-law 2, all the persons eligible for the post may have applied and in that case, the field of consideration would have been enlarged and the Selection Committee or the Council would have had a much larger field from which to choose the best available person and that would have removed all doubts of arbitrariness from the mind of those eligible for the post. Of course, we do not wish to suggest for a moment that appointment to every post must be made only after advertising or publicising the vacancy. That would not be right, for there are quite a few posts at the top level which cannot be and should not be advertised or publicised, because they are posts for which there should be no lobbying nor should any applications be allowed to be entertained. Examples of such posts may be found in the post of Commander of Armed Forces or the Chief Justice or the Judges of the Supreme Court or the High Court.
19. The manner in which the matter had been dealt with depicts a sordid state of affairs. Contrary to the notification the vacancies had not only been altered but bifurcation of vacancies had also been altered. There had been no transparency and nothing has been produced before us to show as to why even the posts which are not being notified had been sought to be filled up. The powers of the Public Service Commission must be held to be confined to the four corners of the statute. It cannot go beyond the notification. All selections to public posts should be guided by principles of fairness and transparency. Any secrecy in public affairs 'breeds' suspicion which leads to contempt. In the context, it is apposite again to refer to the following observations of the Supreme Court in B.S. Minha's case (supra).
It is always desirable that in public bodies the minutes of the proceedings regarding selection should be properly maintained in order to obviate any suspicion or doubt and such minutes along with the relevant documents should be placed before the final authority entrusted with the task of selection for appointment... It is not for the Court to determine who is the superior of the two candidates and who should be selected. It is for the authorities concerned to select from amongst the available candidates. The members of the Selection Committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all relevant considerations before coming to a conclusion. But the real difficulty is that in the absence of publicity as contemplated by bye-law 2, it cannot be said that all other qualified persons like the petitioners were also considered by the Selection Committee for appointment, in the absence of any application by them for the post or any recommendation of them by any other authority or individual.
20. As observed above, there is something in this case which does not meet the eye. Though we directed the learned Standing Counsel for APPSC to produce the entire file he has not chosen to do so except placing a letter dated 14-8-2001 addressed by the Secretary in-charge to the learned Standing Counsel and a few 'assorted' papers. This contemptuous practice on the part of those who are at the helm of affairs of the constitutional body must be deprecated and necessary action should be taken. We therefore direct the Chief Secretary to Government of Andhra Pradesh to conduct enquiry into the whole affair from the stage of receiving requisition from the authorised officer till the recruitment process for the post of School Assistants in Zone-VII vide Advertisement No.4/97, fix responsibility and take necessary action including criminal action against all the officers and employees duly reporting compliance to this Court. The Chief Secretary to Government of A.P. shall complete the enquiry within a period of eight weeks and submit report to this Court.
21. Lastly, though we have agreed with the learned Counsel on the second contention that recruitment of three Urdu Medium Teachers is illegal and unconstitutional, no relief can be given. It is well settled that in the absence of persons, who are adversely affected, no Court can pass any adverse orders against the persons who are not before the Court. (See Bimal Chandra v. Chairman, ), Rasbihari v. State of Orissa, AIR 1961 SC 1081, Prabodh Verma v. State of UP., and State of H.P. v. Mahajan, ).
22. We are, prima facie, of considered opinion that by not producing entire file/all records inspite of receiving "Rule Nisi" and inspite of direction to learned Standing Counsel for APPSC the respondent committed contempt. We therefore direct the Registry to initiate necessary action for contempt against Secretary of APPSC.
23. After perusing the few papers produced before us "as file" and the counter-affidavit filed by the respondents we are convinced that there are attempts on the part of the respondents to plead falsehood which is against public justice. In India, offence of perjury is not enforced often. This practice needs to be rectified as pointed out by the Supreme Court in Suo Motu Proceedings against Mr. R. Kamppan, 2001 AIR SCW 2104. The Supreme Court in the said judgment dealing with offence of perjury held as under.
Since the early common law had no established mechanism for dealing with false swearing by witnesses, the Court of Star Chamber assumed for itself the power to punish perjury. This authority was confirmed by statute in 1487 (Star Chamber Act, 3 Hen. 5, C1(1487) (England) (repealed). The first detailed statute against false swearing was enacted in 1562 (5 Eliz. 1, C9 (1562) (England) (repealed). When the Star Chamber was abolished in 1640, its judicially defined offence of perjury passed into English common law, reaching any cases of false testimony not covered by the terms of the statute.
Edward Coke, whose views strongly influenced early American law, wrote in his Third Institute, published in 1641, that perjury was committed when, after a 'lawful oath' was administered in a judicial proceeding', a person swore 'absolutely and falsely' concerned a point 'material' to the issue in question (*164). In this form, the law remained unchanged into the twentieth century.
24. Referring to Section 191 of Indian Penal Code the Supreme Court further held:
In India, law relating to the offence of perjury is given a statutory definition under Section 191 and Chapter XI of the Indian Penal Code, incorporated to deal with the offences relating to giving false evidence against public justice. The offences incorporated under this Chapter are based upon recognition of the decline of moral values and erosion of sanctity of oath, Unscrupulous litigants are found daily resorting to utter blatant falsehood in the Courts, which has, to some extent, resulted in polluting the judicial system. It is a fact, though unfortunate, that a general impression is created that most of the witnesses coming in the Courts despite taking oath make false statements to suit the interests of the parties calling them. Effective and stern action is required to be taken for preventing the evil of perjury, concededly let lose by vested interest and professional litigants. The mere existence of the penal provisions to deal with perjury would be a cruel joke with the society unless the Courts stop to take an evasive recourse despite proof of the commission of the offence under Chapter XI of the Indian Penal Code. If the system is to survive, effective action is the need of the time.
25. We are bound by the observations made by the Supreme Court in the above case, Effective action for perjury is need of time. Therefore, we direct the Registrar (Judicial) of High Court of Judicature of Andhra Pradesh, Hyderabad to file a complaint under Section 193 of Indian Penal Code against the deponent who filed affidavit on behalf of the APPSC, before the Magistrate competent to take cognizance of the offence in Hyderabad. The Registrar (Judicial) is entitled to file complaint and take all necessary steps for prosecuting the complaint under Section 193 of IPC.
26. In the result, we dispose of the writ petition directing all concerned to take necessary action as directed in paragraphs 20, 22 and 25. There shall be no order as to costs.