Andhra Pradesh High Court - Amravati
K. Shravan Raju vs The State Of Andhra Pradesh on 23 September, 2021
IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE NINALA JAYASURYA
WRIT PETITION Nos.7965 of 2019 and 24371 of 2020
(Taken up through video conferencing)
W.P.No.7965 of 2019
K. Shravan Raju S/o. K. Ramanjaneyulu,
Aged about 26 Yrs, Occ: Advocate,
R/o: D.No.76-54, Sivaiah Nagar, SAP Camp,
Kalluru SAP Gate, Kurnool, Andhra Pradesh.
.. Petitioner
Versus
The State of Andhra Pradesh,
Rep. by its Principal Secretary,
Law Department, Secretariat,
Velagapudi, A.P. and another.
.. Respondents
Counsel for the petitioner : Mr. Y. Balaji
Counsel for respondent No.1 : GP for Law & Legislative Affairs
Counsel for respondent No.2 : Mr. P.S.P. Suresh Kumar,
Standing Counsel for High Court
W.P.No.24371 of 2020
Shaik Nishad Naaz D/o. Shaik Jaffer,
Aged about 32 years, Occ: Advocate,
R/o: H.No.12-1081, Rahamat Nagar,
Chilakaluripeta, Guntur,
Andhra Pradesh - 522 616.
.. Petitioner
Versus
The State of Andhra Pradesh,
Rep. by its Principal Secretary,
Law Department, Secretariat,
Velagapudi, A.P. and another.
.. Respondents
2 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
Counsel for the petitioner : Mr. Y. Balaji
Counsel for respondent No.1 : GP for Law & Legislative Affairs
Counsel for respondent No.2 : Mr. P.S.P. Suresh Kumar,
Standing Counsel for High Court
Dates of hearing : 01.09.2021 & 03.09.2021
Date of judgment : 23.09.2021
COMMON JUDGMENT
(per Arup Kumar Goswami, CJ)
Heard Mr. Y. Balaji, learned counsel for the petitioners. Also heard
Mr. P.S.P. Suresh Kumar, learned standing counsel for High Court,
appearing for respondent No.2.
2. The petitioner in W.P.No.7965 of 2019, by name K. Shravan Raju,
is a practicing Advocate belonging to Yadava (Golla) Community, which
comes under Category BC-D in reservation classification in the State of
Andhra Pradesh. The Registrar (Recruitment), High Court of Andhra
Pradesh, had issued a Notification, vide Notification No.5/2019-RC dated
17.06.2019, for filling up 38 posts of Civil Judge (Junior Division) in
Andhra Pradesh State Judicial Service, out of which 31 posts are to be
filled up under Direct Recruitment and 7 posts are to be filled up under
Recruitment by Transfer. The Notification stated that the recruitment
process shall be governed by Andhra Pradesh State Judicial Service Rules,
2007 (for short, 'Rules of 2007').
3. The petitioner in W.P.No.7965 of 2019 has assailed Rule 6(f) of the
Rules of 2007 as arbitrary and ultra vires to the provisions of the
Constitution and has also challenged Clause VIII of the aforesaid
Notification dated 17.06.2019, which stipulates that OC/BC category
3 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
candidates must secure at least 60% marks in aggregate in written
examination and viva voce while SC/ST category candidates must secure
at least 50% marks in aggregate in written examination and viva voce to
become eligible for selection.
4. The petitioner in W.P.No.24371 of 2020, by name Shaik Nishad
Naaz, is also an Advocate and she professes Muslim religion. She comes
under BC-E (Shaik - BC-E) category as per the reservation classification in
the State of Andhra Pradesh. When the Notification dated 17.06.2019 was
issued, she was not eligible to apply as she had not put in three years of
practice as an Advocate as on 01.06.2019 as stipulated in Clause III(a) of
the Notification meant for the candidates under Direct Recruitment. She
had filed a writ petition, being W.P.No.9166 of 2019, and an interim order
was passed directing the authorities to accept the application of the
petitioner if it was otherwise found to be in order and to permit her to sit
for the examination, if she was eligible and fulfilled all other
requirements. On the strength of the said interim order, she had
appeared in the preliminary examination with Hall Ticket No.1255 and
having passed the said preliminary examination, she had qualified for the
written examination. She had also qualified for the oral interview/viva
voce along with four other candidates with Hall Ticket Nos.1184, 1263,
1274 and 1284.
5. After the interview process was over, results were declared on
23.11.2020. While only one candidate was declared selected, the result of
three candidates was withheld because they had not completed three
years of practice, providing that their result would be declared subject to
the outcome of W.P.Nos.9140 and 9166 of 2019 or other connected writ
4 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
petitions, if any. The name of the writ petitioner in W.P.No.24371 of 2020
did not appear in the final select list and it was informed to her orally that
she had not achieved 60% aggregate marks as per Clause VIII of the
Notification. It is at that stage, she had filed W.P.No.24371 of 2020
challenging the validity of Rule 6(f) of the Rules of 2007 and Clause VIII
of the Notification dated 17.06.2019 and seeking a direction to
respondent No.2- Registrar (Recruitment) to select her for the post of
Civil Judge (Junior Division) without reference to the stipulation of 60%
aggregate marks in written examination and viva voce. It is pleaded that
out of 31 posts to be filled up under Direct Recruitment, one post is
meant for BC-E (Women) category and the petitioner in W.P.No.24371 of
2020 is the only candidate from the said category to have been selected
for viva voce.
6. Mr. Y. Balaji, learned counsel for the petitioner in both the cases,
submits that while candidates belonging to BC category who secure not
less than 50% marks in each paper and not less than 55% of marks in
aggregate in written examination are made eligible for viva voce, such
concession is not provided at the time of final selection and therefore, the
concession allowed at the stage of written examination becomes illusory
as BC category candidates would become eligible for selection only if they
secure at least 60% marks in aggregate in written examination and viva
voce. However, in respect of SC/ST category candidates, concession has
been maintained at two stages, by providing that they shall secure 50%
marks in aggregate in the written examination to become eligible for viva
voce and 50% marks in aggregate in written examination and viva voce
to become eligible for selection. It is submitted that such a stipulation of
5 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
60% marks in aggregate in written examination and viva voce for BC
category candidates nullifies the very purpose for which concession was
granted fixing a lower eligibility prescription of aggregate of 55% marks
in the written examination to take part in the viva voce. It is submitted
that Rule 6(f) of the Rules of 2007 to the extent it is under challenge is
wholly arbitrary, discriminatory and has got no rational basis to the object
sought to be achieved and rather, it is contrary to the object of providing
reservation to the BC category candidates. It is submitted by him that in
the written examination, the petitioner in W.P.No.24371 of 2020 had
secured 167.5 marks, i.e., 55.83% marks in aggregate, and in viva voce,
she got 30 marks out of 50 marks and she had obtained overall
aggregate of 56.42% of marks in the written examination and viva voce.
Learned counsel has relied on a judgment of the Hon'ble Supreme Court
in the case of Dr. (Major) Meeta Sahai v. State of Bihar, reported in
2019 SCC OnLine SC 1632, to contend that there is no bar to
challenge the provision of Rule 6(f) after participating in the selection
process and failing to succeed therein and that the petitioner can
successfully maintain such a challenge and obtain relief. He further
submits that the petitioner in W.P.No.7965 of 2019 had not appeared in
the selection process and, therefore, even if the challenge to the Rule 6(f)
of the Rules of 2007 and Clause VIII of the Notification succeeds, he may
not be entitled to any consequential benefit.
7. Mr. P.S.P. Suresh Kumar, learned standing counsel for High Court,
abiding by the stand taken in the counter-affidavit, has submitted that the
petitioner in W.P.No.24371 of 2020, having participated in the selection
process, cannot challenge the amendment of Rules at the fag end of the
6 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
selection process and as such, the writ petition filed by her is not
maintainable. It is submitted that the impugned Rule cannot be treated as
arbitrary and the contention advanced to the contrary is not sustainable
in law. He has also relied on paragraph 16 of Manish Kumar Shahi v.
State of Bihar and others, reported in (2010) 12 SCC 576, and
paragraphs 18 and 24 of Ramesh Chandra Shah and others v. Anil
Joshi and others, reported in (2013) 11 SCC 309. It is further
submitted by him that in view of the judgment dated 04.03.2021 of the
Division Bench of this Court in W.P.No.7934 of 2019 and batch, fresh
Notification for 68 posts of Civil Judge (Junior Division) was issued on
20.07.2021 and in view of the pendency of W.P.No.24371 of 2020, one
post of Civil Judge (Junior Division) in the category of BC-E is kept
reserved till final outcome of the writ petition.
8. We have considered the submissions of the learned counsel for the
parties and have perused the materials on record.
9. Before proceeding further, it will be relevant to note that a batch
of writ petitions, being W.P.No.7934 of 2019 and batch, were filed before
this Court, wherein challenge was mounted to Rule 5(2)(a)(i) of the Rules
of 2007, which stipulates that a person to be appointed to the category of
Civil Judges shall be one who has been practicing for not less than 3
years as an Advocate as on the date of publication of the advertisement
in the newspapers. The writ petitions were divided into two categories,
one arising out of the Notification dated 17.06.2019 and the other arising
out of the Notification dated 03.12.2020. This Court disposed of the said
batch of writ petitions, by a common judgment and order dated
04.03.2021. While holding Rule 5(2)(a)(i) of the Rules to be
7 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
unconstitutional, so far as the writ petitions arising out of the Notification
dated 17.06.2019, which were referred to as 'first batch', are concerned,
this Court, at paragraph 29 of the judgment, held as under:
"29. So far as the first batch of writ petitions is
concerned, as is already noticed, those who had approached
this Court were permitted by way of interim order to take
part in the recruitment process. As such, there is no
necessity to set aside the Notification dated 17.06.2019. As
the challenge regarding unconstitutionality of the Rule has
been upheld, the Registry will take steps in respect of the
three writ petitioners whose results were not declared.
Depending on the result, further steps, as may be called for,
shall be taken by the Registry. Following the interim order
dated 12.07.2019, we also make it clear that the three
candidates cannot claim any equities, such as, seniority,
etc."
10. In exercise of the powers conferred by Articles 233, 234, 235, 237
read with the proviso to Article 309 and proviso to Clause (3) of Article
320 of the Constitution of India, amendments were made to the Rules of
2007 issued under G.O.Ms.No.119, Law (LA&J-SC.F) Department, dated
02.08.2008, vide G.O.Ms.No.29, Law (LA&J-SC.F) Department, dated
28.07.2017. By the aforesaid amendment, Rule 6 was substituted. Rule 6,
as substituted, provides for recruitment, methodology for conducting
examination, selection process, fee, etc. In the context of the case, it will
be relevant to reproduce hereinbelow Rule 6(e) and (f) of the Rules of
2007, for better appreciation:
8 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
"6. ...
(e). (i) The High Court shall hold written
examinations consisting of three papers i.e. (I) Civil Law,
(II) Criminal Law and (III) English (Translation and Essay
Writing) carrying 100 marks each, having a duration of 3
hours each respectively, for the post of Civil Judge and for
the post of District Judge.
(ii) The medium of examination for writing the
examination is English.
(iii) The syllabus for the screening test and written
examination for Civil Judge/ District Judge recruitment is as
detailed in Schedules C and D appended to the rules.
(f). The candidates applying for being appointed
under Direct Recruitment who secures not less than 55% of
marks in each paper and not less than 60% of marks in
aggregate in the written examination shall be eligible for
viva voce carrying 50 marks.
Provided that the candidates belonging to Backward
Class category who secure not less than 50% marks in each
paper and not less than 55% of marks in aggregate in the
written examination shall be eligible for the viva voce.
Provided further that the Scheduled Castes and
Scheduled Tribes Candidates who secure not less than 45%
marks in each paper and not less than 50% of marks in
aggregate in the written examination shall be eligible for the
viva voce.
9 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
Provided also that, the High Court shall call the
candidates for viva voce for the post of Civil Judge / District
Judge in the ratio of 1:3 of the available vacancies to the
successful candidates.
Provided also that if there are more than one
candidate who have secured identical cut off marks, for
maintaining the ratio of 1:3, all such candidates shall be
called upon to appear for Viva Voce.
Provided also that only such candidates who secure
at least 60% marks in aggregate in written examination and
viva voce and above in respect of OC/BC category and 50%
marks in aggregate in written examination and viva voce
and above in SC/ST category shall be eligible for selection."
11. It will also be appropriate to reproduce Clause VI(a) of the
Notification dated 17.06.2019 providing for minimum marks to be secured
in the written examination to qualify for viva voce by the candidates
under Direct Recruitment, which reads as under:
"VI. Minimum Marks to be secured in the
Written Examination to qualify for Viva-Voce:
a) Under Direct Recruitment:
The candidates applying under Direct Recruitment
who belong to OC category must secure not less than 55%
of marks in each paper and not less than 60% of marks in
aggregate in the written examination to become eligible for
Viva-Voce.
10 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
The candidates belonging to Backward Class category
under Direct Recruitment must secure not less than 50%
marks in each paper and not less than 55% of marks in
aggregate in the written examination for calling for Viva-
Voce.
The candidates belonging to Scheduled Castes and
Scheduled Tribes categories must secure not less than 45%
marks in each paper and not less than 50% of marks in
aggregate in the written examination for calling for Viva-
Voce."
12. Clause VIII of the Notification provides for minimum aggregate
marks to be secured in the written examination and viva voce for
selection to the post of the Civil Judge (Junior Division) and the relevant
portion thereof reads as under:
"For selection to the posts of Civil Judge (Junior
Division) under Direct Recruitment and Recruitment by
Transfer, the OC/BC category candidates must secure at
least 60% marks in aggregate in Written Examination and
Viva-Voce and SC/ST category candidates must secure at
least 50% marks in aggregate in written examination and
Viva-Voce. (Candidates who secure less than the said
percentage will become ineligible for selection to the post)."
13. The written examination contains three papers on three subjects,
carrying 100 marks each, and viva voce is for 50 marks. Thus, the total
marks of the selection process is 350. For better appreciation, the
11 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
minimum marks a candidate has to obtain in viva voce if he obtains
minimum aggregate marks in written examination making him eligible for
viva voce, and minimum aggregate marks in written examination and viva
voce to make him eligible for selection in terms of Rule 6(f) of the Rules
of 2007 are indicated in a tabular form in respect of three categories, i.e.,
OC, BC and SC/ST categories:
Minimum Aggregate Minimum Marks
Marks to be Marks to be obtained
obtained in In written in
Category Main examination Vivo Voce
Examination and viva voce
(out of 50
(out of 300 Marks)
Marks)
OC 180 Marks 210 Marks 30 Marks
(60%) (60%)
BC 165 Marks 210 Marks 45 Marks
(55%) (60%)
SC/ST 150 Marks 175 Marks 25 Marks
(50%) (50%)
14. The table above goes to show that OC category candidates and BC
category candidates have to secure total 210 marks in the written
examination and viva voce to become eligible for selection. To become
eligible for viva voce, OC category candidate has to secure 180 marks
(60% of marks in aggregate) in the written examination, whereas a BC
category candidate has to secure 165 marks (55% of marks in
aggregate). However, by reason of prescription of 60% aggregate
marks, i.e., 210 marks, in written examination and viva voce to become
eligible for selection for BC category candidates on par with OC category
12 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
candidates, a BC category candidate has to obtain 45 marks out of 50
marks in viva voce, while a OC category candidate has to secure 30
marks out of 50 marks. So far as SC/ST category candidates are
concerned, aggregate in the written examination as well as overall
aggregate in the written examination and viva voce have been maintained
at 50% each.
15. There is no reasonable basis as to why the bench mark is
increased for BC category candidates at the stage of consideration for
selection by prescribing minimum aggregate marks in the written
examination and viva voce on par with OC category candidates, while the
bench mark to be achieved by them in the written examination to become
eligible for viva voce was fixed lower than OC category candidates. The
table above demonstrates how disadvantageous a BC category candidate
would stand qua the candidates in OC category and SC/ST category who
qualify for the viva voce after obtaining prescribed minimum marks in the
written examination in that while a general category candidate would
have to obtain 30 marks and a SC/ST category candidate would have to
obtain 25 marks out of 50 marks in the viva voce, to achieve the 60% of
aggregate marks in written examination and viva voce, a candidate of BC
category has to obtain 45 marks out of 50 marks in the viva voce.
Fixation of minimum aggregate marks of 60% to be obtained by BC
category candidates in the written examination and viva voce, while
making them eligible to appear in the viva voce provided they get not less
than 50% marks in each paper and not less than 55% marks in
aggregate in the written examination, is clearly discriminatory and
arbitrary and the same does not achieve the purpose for which
13 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
concession was made available to them at the level of written
examination.
16. Bearing in mind the scheme in respect of OC category and SC/ST
category candidates and to maintain the parity, what would have been
reasonable is to prescribe minimum of 55% marks in aggregate in written
examination and viva voce to the candidates belonging to BC category.
On the anvil and touchstone of the prescription of the marks as
contemplated in the impugned Rule 6(f) of the Rules of 2007, prescribing
minimum of 60% marks in written examination and viva voce is blatantly
discriminatory, so far as BC category candidates are concerned.
17. Accordingly, proviso to Rule 6(f) of the Rules of 2007 prescribing
that to be eligible for selection, a BC category candidate must secure at
least 60% marks in aggregate in written examination and viva voce is
held to be arbitrary, unreasonable and ultra vires and the same is,
accordingly, struck down. Consequently, Clause VIII of the Notification
dated 17.06.2019 to the extent it contains corresponding stipulation in so
far as it relates to BC category candidates, is set aside.
18. Mr. P.S.P. Suresh Kumar had submitted that even if the impugned
Rule is held to be ultra vires, then also the petitioner in W.P.No.24371 of
2020 will not be entitled to get any benefit although one post of BC-E
(Women) category is kept reserved due to pendency of the present writ
petition filed by her. So far as the petitioner in W.P.No.7965 of 2019 is
concerned, the issue does not arise for consideration as he had not
participated in the selection process.
14 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
19. The decision in Manish Kumar Shahi (supra), upon which
Mr. P.S.P. Suresh Kumar places reliance, was considered by the Hon'ble
Supreme Court in Dr. (Major) Meeta Sahai (supra) and at paragraphs
17 and 18 of the judgment, it is observed as follows:
"17. It is well settled that the principle of estoppel
prevents a candidate from challenging the selection process
after having failed in it as iterated by this Court in a plethora
of judgements including Manish Kumar Shahi v. State of
Bihar, observing as follows:
"16. We also agree with the High Court that after
having taken part in the process of selection knowing
fully well that more than 19% marks have been
earmarked for viva voce test, the appellant is not
entitled to challenge the criteria or process of
selection. Surely, if the appellant's name had
appeared in the merit list, he would not have even
dreamed of challenging the selection. The appellant
invoked jurisdiction of the High Court under Article
226 of the Constitution of India only after he found
that his name does not figure in the merit list
prepared by the Commission. This conduct of the
appellant clearly disentitles him from questioning the
selection and the High Court did not commit any
error by refusing to entertain the writ petition."
The underlying objective of this principle is to prevent
candidates from trying another shot at consideration, and to
avoid an impasse wherein every disgruntled candidate,
having failed the selection, challenges it in the hope of
getting a second chance.
15 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
18. However, we must differentiate from this
principle insofar as the candidate by agreeing to participate
in the selection process only accepts the prescribed
procedure and not the illegality in it. In a situation where a
candidate alleges misconstruction of statutory rules and
discriminating consequences arising therefrom, the same
cannot be condoned merely because a candidate has
partaken in it. The constitutional scheme is sacrosanct and
its violation in any manner is impermissible. In fact, a
candidate may not have locus to assail the incurable illegality
or derogation of the provisions of the Constitution, unless
he/she participates in the selection process."
20. In Ramesh Chandra Shah (supra), it is observed that a person
who consciously takes part in the selection process cannot, thereafter,
turn around and question the method of selection and its outcome.
21. The petitioner in W.P.No.24371 of 2020 had successfully
maintained her challenge to the requirements of the impugned
Notification in the earlier round of litigation in respect of the same
selection process and by virtue of the interim order passed in the earlier
writ petition filed by her, had taken part in the selection process. It is
true that she had challenged Rule 6(f) of the Rules of 2007 and Clause
VIII of the Notification dated 17.06.2019 only after final selection list was
published. However, it is also to be remembered that Rule 6(f) of the
Rules of 2007 on the very same issue was already under challenge in
W.P.No.7965 of 2019 filed by K. Shravan Raju.
16 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
22. Though question has not arisen so far as the petitioner in
W.P.No.7965 of 2019 is concerned, let us hypothetically assume that he
had appeared in the examination and successfully reached the stage of
viva voce and finally did not get selected on the ground that he did not
secure 60% marks in aggregate in written examination and viva voce. He
had mounted the challenge at the threshold. If his challenge is upheld
and the provision is struck down, there would have been no stipulation so
far as BC category candidates are concerned with regard to securing of
minimum marks in written examination and viva voce and he would have
been entitled to be appointed. We have already expressed an opinion
that it would have been reasonable to prescribe 55% marks in aggregate
in written examination and viva voce to the candidates belonging to BC
category. The petitioner in W.P.No.24371 of 2020 had obtained 56.42%
aggregate marks in written examination and viva voce as could be seen
from page 444 of the material papers filed along with the Memo dated
02.09.2021 in W.P.No.24371 of 2020.
23. Having struck down the relevant proviso to Rule 6(f) of the Rules
of 2007 and the corresponding portion in Clause VIII of the Notification
dated 17.06.2019, as indicated hereinabove, in the peculiar facts and
circumstances, we are of the considered opinion that it will be wholly
inequitable to deny selection to the petitioner in W.P.No.24371 of 2020 as
she had obtained more than 55% marks in aggregate in written
examination and viva voce and, more particularly, in view of the fact that
a post in BC-E (Women) category has been kept reserved.
24. Accordingly, we hold that the petitioner in W.P.No.24371 of 2020 is
eligible for selection to the post of Civil Judge (Junior Division) pursuant
17 HCJ & NJS,J
W.P.No.7965 of 2019 &
W.P.No.24371 of 2020
to the Notification dated 17.06.2019 and, therefore, steps as are required
to be taken consequent upon selection, shall be taken by the
respondents.
25. The writ petitions are allowed in terms of the observations made
hereinabove. No costs. Pending miscellaneous applications, if any, shall
stand closed.
ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J
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