Telangana High Court
Prl Secy., Home Police Dept., Hyd And 2 ... vs Mohd. Asaduddin, Hyd Dist And Anr on 18 March, 2024
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
* THE HON'BLE SRI JUSTICE V.V.S.RAO
AND
THE HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
WRIT PETITION Nos. 5769, 6667, 6668, 6677, 6681, 6682, 6686,
6689, 6690, 6691, 6692, 6695, 6696, 6697, 6698, 6699, 6701 and
6703 of 2012.
%Dated:19.04.2012
Between:
The State of Andhra Pradesh,
Represented by its Principal Secretary, Home (Police)
Department,
Secretariat Building, Hyderabad,
And others.
...Petitioners
and
K.Dhanraj,
And others.
...Respondents
! Counsel for the Petitioners: Government Pleader for Services-I
^Counsel for the Respondents: Ms.G.Uma Rani
<Gist:
>Head Note:
?Citations:
1. (1989) 4 SCC 582
2. (1998) 7 SCC 123
3. 2002 Suppl. (1) ALD 137 (DB)
4. (2009) 15 SCC 321
5. (2010) 6 SCC 777
6. (2010) 12 SCC 204
7. AIR 1990 SC 2059
8. AIR 1993 SC 477 : 1992 Supp (3) SCC 217
9. (2010) 6 SCC 545
10. (1996) 6 SCC 506
11. (2007) 4 SCC 1
12. (2007) 4 SCC 361
13. (1997) 7 SCC 592
14. AIR 1998 SC 1703
15. AIR 1951 SC 467
16. AIR 1965 SC 722
17. (2003) 6 SCC 675
18. (2010) 8 SCC 685 : AIR 2010 SC 3043
19. AIR 1991 SC 1612
20. (2008) 9 SCC 24
21. (2011) 4 SCC 374
22. AIR 1985 SC 167
23. 1995 Supp (1) SCC 179
24. AIR 1998 SC 331
THE HON'BLE SRI JUSTICE V.V.S.RAO
AND
THE HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
WRIT PETITION Nos. 5769, 6667, 6668, 6677, 6681, 6682, 6686,
6689, 6690, 6691, 6692, 6695, 6696, 6697, 6698, 6699, 6701 and
6703 of 2012.
Dated:19.04.2012
Between:
The State of Andhra Pradesh,
Represented by its Principal Secretary, Home (Police)
Department,
Secretariat Building, Hyderabad,
And others.
Petitioners
And
K.Dhanraj,
And others.
... Respondents
THE HON'BLE SRI JUSTICE V.V.S.RAO
AND
THE HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
WRIT PETITION Nos. 5769, 6667, 6668, 6677, 6681, 6682, 6686,
6689, 6690, 6691, 6692, 6695, 6696, 6697, 6698, 6699, 6701 and
6703 of 2012.
COMMON ORDER:
(Per Hon'ble Sri Justice V.V.S.Rao)
This batch of writ petitions with identical background facts,
throws up similar question. There are three impugned orders
passed by the Andhra Pradesh Administrative Tribunal (APAT or
the tribunal). These followed an earlier order dated 20.12.2011 of
the Hon'ble Vice Chairman (HVC) of the APAT, constituting as a
Bench under Section 5(6) of the Administrative Tribunal Act, 1985
(the Act), in O.A.Nos.10947 of 2009 and batch. The first
respondent (hereafter, the applicants) in each of the cases was
successful before the APAT. All of them entered caveat. After
proper notice to their Counsel, the matter is heard finally at the
stage of admission at length. This common order shall dispose of
all the petitions.
Background
The State Level Police Recruitment Board (hereafter, the
Board) issued a recruitment notification, dated 15.11.2008, inviting
applications from eligible male and female candidates for limited
recruitment to the posts of Stipendiary Cadet Trainee Police
Constables (SCTPC) (Civil & Armed Reserve). These adhoc
posts are governed by the Andhra Pradesh Police (Stipendiary
Cadet Trainee) Rules, 1999 (for brevity, the Special Rules). A
large number of candidates applied. After publication of the final
results of the written test on 21.02.2009 the selectees were placed
under training.
Non-selectee Backward Classes (BCs) candidates approached the
tribunal in O.A.No.10947 of 2007 and batch. They prayed for a
declaration that the action of the Board in not selecting them to the
posts by treating them as belonging to BCs by considering the
certificate issued by the Tahsildar as illegal and arbitrary and for a
consequential direction to appoint them to the notified posts.
It was alleged that they belong to BC, they did not stand
excluded by the creamy layer policy; they produced the valid
certificate issued by the competent authority; and in an arbitrary
manner the Board considered their case as OC candidate for non-
production of a BC non-creamy layer certificate. The Government
and the Board opposed contending that as per the relevant
Government Order Rs.4.00 lakhs income limit is a criteria for
determining the creamy layer among BCs; the applicants failed to
produce the relevant certificate that they did not belong to creamy
layer and that the necessary amendment was also made to Rule
22 of the Andhra Pradesh State and Subordinate Service Rules ,
1996 (General Rules). The learned Vice Chairman sitting single
considered as many as five points and allowed the Original
Applications on 28.02.2011. While doing so G.O.Ms.No.3, dated
04.04.2006 was set aside and a further direction was given to fix
the creamy layer as per the Government of India (GoI) Memo,
dated 25.10.2008, i.e., Rs.4.5 lakhs and consider the case of the
applicants therein as per their merit under various BC categories.
There is no dispute that the Board implemented this order by
giving appointment orders to as many as 59 BC candidates. Be it
noted, within a month thereafter, the learned Chairman of the
tribunal also allowed similar case, being O.A.No.3625 of 2010,
following the order of the HVC.
The applicants in these matters filed another batch of
applications seeking similar relief. They claimed the same relief
as in O.A.No.3625 of 2010. The learned Judicial Member sitting
single followed the order of HVC and allowed the Original
Applications by three separate orders passed in December 2011
and January 2012, aggrieved by which, the Government, the Board
and the Cyberabad Commissioner of Police filed these writ
petitions.
Submissions
The Government Pleader for Services - I made four main
submissions as follows.
i) The applicants' applications are barred by delay and
laches, and therefore, the tribunal could not have exercised
equities in their favour by following the earlier orders of the tribunal
and giving the same benefit, especially when the Board already
issued fresh recruitment notification on 31.10.2011. He relies on
S.S.Rathore v State of Madhya Pradesh , N.Balakrishnan v
M.Krishnamurthy , Government of Andhra Pradesh v
S.Yellamanda , Ghulam Rasool Lone v State of Jammu and
[4] [5]
Kashmir and State of Orissa v Rajkishore Nanda .
ii) The Original Applications ought to have been dismissed
for non-joinder of necessary parties which is fatal. Elaborating
this submission he would contend that pursuant to 2008
notification selections were made and many BC candidates were
appointed; who are not made parties; by the time the tribunal was
moved in October 2001 the Board issued a fresh notification to fill
up all the vacancies which arose as well as that remained unfilled,
and thus, there are no vacancies available to accommodate the
applicants. If the impugned orders are to be implemented all the
BC candidates who are likely to be appointed after training have to
be recalled by cancelling their appointments and in the absence of
such effected parties, the tribunal ought not to have entertained
the Original Applications. He relied on the decision of the
Supreme Court in Public Service Commission v Mamta Bisht .
iii) The applicants sought a direction to the Board to appoint
them against BC vacancies as per the notification dated
28.03.2008. There was no such notification ever, and therefore,
the tribunal was in error in entertaining the Original Application
with defective prayer and granting the relief, which was not asked
for i.e., directing the Board to appoint the applicants pursuant to
the notification dated 15.12.2008 which was not the subject matter
of the Original Applications.
iv) the applicants were not eligible for being considered
against BC vacancies. As per the notification, every candidate
claiming reservation under BC quota is required to produce the
certificate in Form Annexure IV to the notification to the effect that
such candidate does not belong to the section of creamy layer as
per G.O.Ms.No.3. None of the applicants enclosed certificate to
that effect and all of them in column 9 of the application admitted
that they belong to the section of creamy layer. Therefore, they
cannot turn around and take different stand before the tribunal. The
non-consideration of the applicants against BC vacancies is
justified as per the Special Rules and as well as the guidelines and
instructions in the recruitment notification.
The Counsel for the applicants Ms.G.Uma Rani would
submit that the plea of delay, laches and equities was not raised
before the tribunal. Nextly and alternately she would urge that
even if such plea is permitted to be raised, there is no delay on the
part of the applicants to approach the tribunal. She would submit
that after publication of the final select list on 21.02.2009,
immediately some of the non-selectees filed O.A.No.10947 of 2009
which was allowed on 28.02.2011. In obedience thereto, the Board
appointed 59 persons. This list was displayed on the website.
Immediately thereafter, the applicants filed cases, and therefore,
there is no delay on their part. The Counsel would also submit
that after completion of the selections pursuant to 2008
notification, large number of BC vacancies remained unfilled.
Similarly situated persons were already appointed pursuant to the
orders of the tribunal on two occasions. If the applicants are
appointed, no prejudice would be caused to any third parties. She
relied on Lt.Governor of Delhi v Const.Dharampal . Lastly, she
would submit that the tribunal did not alter the policy of fixing
income ceiling limit, and that in accordance with the subsequent
Memo of the GoI, a direction was issued to the Government to fix
the ceiling limit at Rs.4.5 lakhs for determining the creamy layer
among the BCs. This according to the Counsel does not amount
to policy change nor the tribunal exceeded its jurisdiction.
The reply of the Government Pleader is as follows. The
issue of G.O.Ms.No.3 laying down the criteria to determine the
creamy layer among the BCs was issued in obedience to the
directions issued by the Supreme Court in Indra Sawhney v Union of
India . An amendment was also made to General Rules by
inserting clause (l) to Rule 22(2) of the General Rules. And even
though, subsequently, the Government Order amending Rule 22
has been kept in abeyance, it does not make any difference, as
the Government is bound to exclude the creamy layer. He also
relies in this regard on T.Narsimhulu v State of Andhra Pradesh .
Eligibility of the applicants
The Board, as noticed supra, issued the recruitment
notification inviting applications for as many as 3324 SCTPCs. A
candidate must have passed Intermediate or its equivalent as on
01.07.2008 and must not have completed the age of 22 years
subject to relaxation of age provided for SC/ST and BCs. Besides,
he/she should meet the specified physical standards (height and
chest) and the visual standards. The reservation to BC category
candidates is dealt with in paragraph 4 and it would be necessary
to extract the same as under.
Government have issued in G.O.Ms.No.3, Backward
Classes Welfare (C2) Department dated 04.04.2006, laying
down the criteria to determine Creamy Layer among
Backward Classes in order to exclude from the provisions of
reservations. Government of Andhra Pradesh has adopted all
the criteria to determine the Creamy Layer among Backward
Classes as fixed by the Government of India. The
Government of Andhra Pradesh have fixed the annual income
limit at Rs.4,00,000/.
a) The candidates belonging to Backward Classes should
submit the Community certificate in the format given in
Annexure IV or Annexure V to avail for relaxation in age. The
certificate must have been issued by the competent revenue
authority not below the rank of Mandal Revenue Officer or
equivalent.
b) Only those candidates belonging to Backward Classes
who do not belong to 'Creamy Layer' as defined in G.O.Ms.No.3,
Backward Classes Welfare (C2) Department dated 04.04.2006 will
be eligible to avail of reservation. They should submit the
Community certificate in the format given in Annexure IV.
c) Candidates belonging to Backward Classes who belong
to 'Creamy layer' are eligible to avail for relaxation in age but
not the quota for reservation. They should submit the
Community certificate in the format given in Annexure V.
(emphasis supplied)
The language is so plain that it does not leave any doubt.
Every person claiming reservation as BC candidate is required to
submit certificate in Annexure IV which contains separate column
indicating whether the candidate belongs to the section of creamy
layer as per G.O.Ms.No.3, dated 04.04.2006. Those candidates
belonging to creamy layer are eligible to avail relaxation in age, but
not the quota for reservation. They shall be considered as OC
candidates. This was in accordance with the Indra Sawhney ratio.
In their Original Applications (with similar pleadings), the
applicants alleged that the Board wrongly treated them as creamy
layer BCs instead of treating them as BC candidates in spite of
production of the certificate in form Annexure IV. But, as a
question of fact the tribunal found that all the applicants did not
produce the certificate in form Annexure IV along with their
applications. The tribunal followed the earlier order in
O.A.No.10947 of 2009 and issued a direction to "to re-examine
whether the applicants come within the creamy layer or not by
taking into account the certificates produced by them
subsequently or insist them to produce the certificates afresh and
consider their case as per their merit under various Backward
Class communities as per the reservation by taking into account
the unfilled vacancies also".
The validity of the criteria for determining the creamy layer
as ordered by the Government in G.O.Ms.No.3 and the scope and
power of the Court/tribunal to interdict with the policy is altogether
a different question. Insofar as this point is concerned, the finding
of the fact that the applicants did not enclose the community
certificate in form Annexure IV stands concluded. This itself
makes the applicants ineligible for being considered against BC
vacancies. There is no dispute that they were considered against
OC vacancies and they did not come up in the selection because
they scored less marks than the marks obtained by the last
candidate in different categories of SCTPCs. This point is held
accordingly.
Judicial Review of Policy
Indra Sawhney considered the constitutional validity of GoI
Office Memorandum dated 25.09.1991 providing for the
reservation to OBCs (other Backward Classes). Multitudinal
issues were raised and considered elaborately. One of the
questions i.e., question No.3(d) was "whether the 'means' test can
be applied in the course of identification of backward classes? And
if the answer is yes, whether providing such a test is obligatory?"
It was answered as follows.
Keeping in mind all these considerations, we direct the
Government of India to specify the basis of exclusion -
whether on the basis of income, extent of holding or otherwise
- of 'creamy layer'. This shall be done as early as possible,
but not exceeding four months. On such specification persons
falling within the net of exclusionary rule shall cease to be the
members of the Other Backward Classes (covered by the
expression 'backward class of citizens') for the purpose of
Article 16(4). The impugned Office Memorandum dated 13th
August, 1990 and 25th September, 1991 shall be
implemented subject only to such specification and exclusion
of socially advanced persons from the backward classes
contemplated by the said O.M. In other words, after the expiry
of four months from today, the implementation of the said O.M.
shall be subject to the exclusion of the 'creamy layer' in
accordance with the criteria to be specified by the Government
of India and not otherwise.
(emphasis supplied)
Again the majority in paragraph 123 (B) ( of AIR) reiterated the
directions as follows.
Within four months from today the Government of
India shall specify the bases, applying the relevant and
requisite socio-economic criteria to exclude socially advanced
persons/sections ('creamy layer') from 'Other Backward
Classes'. The implementation of the impugned O.M. dated
13th September, 1990 shall be subject to exclusion of such
socially advanced persons ('creamy layer').
The law declared by the Supreme Court is binding and
Article 144 of the Constitution ordains all the civil and judicial
authorities in the territory of India to take action in aid of the
Supreme Court. After Indra Sawhney decision the GoI in Ministry
of Personnel, Public Grievances and Pensions, came out with
Office Memorandum dated 08.09.1993 enumerating the persons
belonging to OBC, inter alia, fixing the annual income ceiling limit
of Rs.2.5 lakhs for exclusion from OBC category. The State
Government enacted the Andhra Pradesh Commission for
Backward Classes Act, 1993 (BC Act), constituting Commission
for Backward Classes. It was requested to evolve criteria for
identification of creamy layer among the backward classes in the
State. After receiving the report on 01.08.1994, the Council of
Ministers requested a Cabinet Sub-Committee (Group of Ministers
i.e., GoM) to take up an in-depth study and make suitable
recommendations. In the meanwhile, it appears, a writ petition,
being W.P.No.22949 of 2009, was filed before this Court for a
direction to the GoAP to evolve creamy layer criteria. An affidavit
was filed giving undertaking that the same will be evolved soon.
Pursuant to such plea, the writ petition was disposed of. Be that
as it is, the GoM submitted report on 20.02.2006 adopting creamy
layer as fixed by GoI, but proposed to raise the income limit to
Rs.4.00 lakhs per annum instead of Rs.2.5 lakhs. Accepting the
proposals, the Government issued G.O.Ms.No.3, dated
04.04.2006, directing to adopt all the criteria to determine creamy
layer among BCs adopting income limit of Rs.4.00 lakhs per
annum.
The Government subsequently issued G.O.Ms.No.496,
dated 20.10.2009, amending Rule 22 of the General Rules in
exercise of the power under the proviso to Article 309 of the
Constitution. A new clause (l) was inserted in sub-rule (2) of Rule
22 which reads, "in implementing the rule of reservation in favour
of Backward Classes the creamy layer shall be excluded. The
criteria as fixed by the Government of India shall be adopted to
determine the creamy layer except the annual income which is
fixed at Rupees Four Lakhs per annum in the State". Whatever be
the reason, two days thereafter, the Government issued executive
instructions vide G.O.Ms.No.504, dated 22.10.2009, keeping the
amendment in abeyance till further orders. Nevertheless, the
Board stipulated that the creamy layer among the BCs shall not be
considered against reserved vacancies as per the guidelines in
G.O.Ms.No.3 unless they produce the certificate in Form
Annexure IV.
In O.A.No.10947 of 2009 the tribunal did not specifically
consider the ineligibility of creamy layer BCs for the posts. After
tracing the background of the creamy layer concept in the State,
and after referring to Indra Sawhney, Indra Sawhney II v Union of
[10] [11]
India , Nair Service Society v State of Kerala , and Ashok Kumar
Thakur (8) v Union of India , the tribunal concluded that, "the
persons who belong to creamy layer as determined by the Central
Government and State Governments from time to time cannot be
given the benefit of reservation contemplated for other Backward
Classes". Nevertheless, the tribunal while observing as below
found fault with the ceiling limit at Rs.4.00 lakhs, set aside
G.O.Ms.No.3 and issued direction to the GoAP to fix the ceiling
limit at Rs.4.5 lakhs.
The Hon'ble Supreme Court has given a categorical
direction to exclude the creamy layer from the benefit of
reservation to the candidates belonging to Backward Class
communities. That direction is binding and the State is bound
to implement it. Failure to amend the rule is only a lapse on the
part of the State and that cannot dilute the direction of the
Hon'ble Supreme Court. Therefore, it follows irrespective of
amendment to Rule 22 of A.P.State and Subordinate Rules
introducing the Creamy Layer concept, the action to exclude the
candidates belonging to Creamy Layer from the reservation
facility is a just and valid decision and cannot be found fault.
But, the matter does not end there. As already
appointed out, the notification issued by the Police
Recruitment Board is dated 15.11.2008. By that date, the
Government of India fixed the limit of Creamy Layer as Rs.4.5
lakhs and that was adopted by Government of Andhra
Pradesh and communicated the same to all the concerned by
its memo dated 25.10.2008. So, the State adopted the said
limit. So, this was prior to issue of notification by the Board.
So, fixing the ceiling limit at Rs.4 lakhs following G.O.Ms.No.3
is bad. They ought to have fixed the ceiling limit at Rs.4.5
lakhs to consider whether the candidates belong to Creamy
Layer or not. Therefore, the said notification is bad to that
extent. However, the notification is valid excluding the
Creamy Layer from the concept of reservation among BCs.
(emphasis supplied)
Even in the orders impugned in these writ petitions, the
learned Judicial Member followed the same reasoning, issued a
direction to refix the creamy layer ceiling and consider the
applicants. The applicants in their counter before this Court raised
a specific plea that in the absence of any valid amendment to Rule
22, the executive guidelines in G.O.Ms.No.3 cannot supplement
the rule of reservation.
To reiterate in O.A.No.10947 of 2009 a finding was recorded
that whether or not there is an amendment to Rule 22 of the
General Rules, the directions issued by the Supreme Court are
binding. These observations of the tribunal are in tune with the
conclusions of this Court as above. When the GoAP determined
criteria for excluding creamy layer BCs as a policy and when such
policy was in furtherance of the directions of the apex court,
whether the tribunal can reformulate the policy. The answer must
be in the negative.
Policy decisions require delicate balancing and
consideration of complex politico-socio-economic inputs.
Judiciary cannot ordinarily encroach upon the executive policy
making prerogative, and it is best left to the executive organ of the
State. Judicial scrutiny is very rare and limited for justiciability of
policy is not always conclusive. But when a policy partakes the
shape of legislation or a rule and such policy is arbitrary,
unreasonable or discriminatory, the Court scrutiny is not totally
ruled out. Further, when the policy impinges fundamental rights,
the Courts would be willing to invalidate that part of the policy
which cannot stand scrutiny. Otherwise, the Court generally
dissuades itself from entering into the wisdom of a policy (M. P. Oil
Extraction and another v. State of M.P and State of Punjab v. Ram
Lubhaya Bagga ). Even where the executive policy cannot stand
the scrutiny by the Court for reasons as hereinabove, the Court of
judicial review/tribunal can only invalidate or strike down the policy
but it cannot reformulate the policy; judicial review is destroyer
and not creator.
Thus we are convinced that the tribunal fell in error in
setting aside the G.O.Ms.No.3 even though there was no such
prayer while holding that the Government is bound by the
directions issued by the Supreme Court in Indra Sawhney. We
further find that the tribunal committed grave error apparent on the
face of the record in directing the Government to reformulate the
policy by increasing the creamy layer ceiling limit to Rs.4.5 lakhs.
We may passingly mention that even Indra Sawhney does not
specifically deal with income ceiling aspect and it was left to the
executive to evolve proper criteria to exclude creamy layer in
enforcing reservations. The tribunal totally lost sight of these
fundamental aspects, and therefore, we record our disapproval.
A submission is made that in the absence of valid
enforceable amendment to Rule 22 the applicants cannot be
denied the benefit of reservation. We are afraid this submission
must fail for two reasons. First, in O.A.No.10947 of 2009 the HVC
categorically held that whether or not there is amendment to Rule
22, directions issued by the Supreme Court are binding on the
State Government. This finding remained unchallenged, and
therefore, the applicants cannot now be heard to raise such a
plea. Secondly, we have briefly indicated the reasons for issue of
G.O.Ms.No.3, the amendment made to Rule 22 by
G.O.Ms.No.496, dated 20.10.2009, and the order of the
Government in G.O.Ms.No.504, dated 22.10.2009, keeping the
amending Government Order in abeyance. Does it take away the
effect of Rule 22(2)(l)? In our considered opinion, G.O.Ms.No.504,
dated 22.10.2009, cannot and would not have any effect on the
amendment made by the Government under the proviso to Article
309 of the Constitution.
In T.Narsimhulu the Supreme Court considered the effect of
non-publication of the Rules or amendment to Rules made under
the proviso to Article 309 of the Constitution. After referring to the
two leading cases on the subject of the requirement of publication
of notification in Harla v State of Rajasthan and State of
Maharashtra v Mayer Hans George , the apex court observed that
the amendment of the Rule or promulgation of Rules by a
Government Order is intended to make known and the reasonable
mode of making known the Rules would be sufficient compliance
under the proviso to Article 309 of the Constitution. The relevant
observations are as follows.
This is not to say that rules made under the proviso to
Article 309 of the Constitution are not required to be published
at all. A rule made under the proviso to Article 309 of the
Constitution has the same effect as an Act of the appropriate
legislature regulating the recruitment and conditions of service
of persons appointed to public services and posts in
connection with the affairs of the Union or of any State.
Hence, even if Article 309 of the Constitution does not say
that the rules made under the proviso thereto are required to
be published, these rules are required to be published just as
any other Act passed by the appropriate legislature is required
to be published so that the persons affected by the rules or
the Act are aware of the rule or the Act...
It will be clear from the law laid down by this Court that
where the law prescribes the mode of publication of the law to
become operative, the law must be published in that mode only,
but where the mode of publication of the law is not prescribed
by the law, such law should be published in some usual or
recognised mode to bring it to the knowledge of all persons
concerned. In the present case, the contention of the
appellants before the Tribunal or the High Court was not that
the government order in GOMs Nos. 35 and 51 that the
amendment to Rule 2 of the Forest Service Rules would have
retrospective effect from 8-4-1986 was never made known by
any reasonable mode, but that it was not published in the
Official Gazette. This contention of the appellants, as we have
seen, has no merit.
(emphasis supplied)
In view of the above we hold that when the Government
issued G.O.Ms.No.496, dated 20.10.2009, inserting clause (l) in
sub-rule (2) of Rule 22 of the General Rules for amending the Rule
of reservation by excluding creamy layer and by fixing Rs.4.00
lakhs per annum as the income ceiling limit it is valid and binding.
We hasten to add that even otherwise as rightly held by the
tribunal in O.A.No.10947 of 2009, the directions issued by the
Supreme Court to exclude the creamy layer and the policy
decision in G.O.Ms.No.3 shall be binding on the GoAP as well as
the Board in making recruitment to SCTPCs. We accordingly
decide this point in favour of the Government and the Board.
Defect in relief
The applicants went to the tribunal seeking a direction to
select and appoint them under BC-B category (non-creamy layer)
pursuant to the notification dated 28.03.2008 by extending the
benefit of judgment in the earlier O.A. It is an admitted fact that
the Board issued the relevant notification on 15.11.2008. It is also
admitted fact that by the time the tribunal allowed the Original
Applications in December 2011 and January 2012, the so called
notification dated 28.03.2008 was never issued. The appointees
completed training. As per the Special Rules, they were regularly
appointed as Constables. In that view of the matter, though we
agree with the submission of the Government Pleader, in view of
the findings on other points, we leave this issue with the
observation as hereinabove.
Delay, laches and equity
It is trite, a statutory tribunal created under Parliamentary or
State enactment has to act within the powers endowed by the
statute. The limitations placed by the statute cannot be ignored
and any excess exercise would be error in the jurisdiction and ex
facie grave error (Suryadev Rai v Ram Chander Rai ). The
powers of administrative tribunal to adjudicate the service law
disputes are also circumscribed by other principles settled of
judicial review. Section 21 of the Act bars the tribunals from
admitting an application which is not made within one year from
the date on which the adverse order was made. It is not a
provision in the nature of taking away the right of the aggrieved
public servant. To some extent it controls the exercise of
jurisdiction by the tribunal and is absolute, subject, however, to
Section 21(3) of the Act, empowering to entertain time barred
applications if the aggrieved satisfies that he had sufficient cause
for not making application within the time.
The notification was issued on 15.11.2008 and the final
select list was published on 21.02.2009. The Original Applications
were filed in October/November 2011 with a delay of more than
one year seven months (after excluding one year of limitation).
The applicants did not move any applications under Section 21(3)
of the Act seeking condonation of delay. In this background we
are afraid the tribunal could not have entertained the O.As ignoring
Section 21(1)(a) and Section 21(3) of the Act. The submission of
the applicants that the plea of delay and laches was not raised
before the tribunal does not impress us. The bar of exercise of
jurisdiction is on the tribunal. When any application is filed for
redressal, it is required to be seen whether their jurisdiction is
barred by Section 21(1)(a) of the Act. The law of limitation is
substantive law and has definite consequence on the rights and
obligations of the party to the lis. The law mandates rejection of
the applications beyond the prescribed period of limitation, save
proven sufficient cause for the delay (Balwant Singh v Jagdish
Singh ).
The Counsel for the applicants, however, submits that the
applications were moved when her clients came to know about the
appointment of 59 persons stipendiary constables in obedience to
the orders of the tribunals in O.A.No.10947 of 2009, and therefore,
they cannot be treated as time barred. She would further contend
that the applicants approached the tribunal seeking relief as was
given to similarly placed persons and therefore, the question of
delay does not arise. We are afraid, we cannot agree with these
submissions.
I n S.S.Rathore a seven Judge Bench interpreted and
construed Section 21(1)(a) of the Act and held that in view of the
specific special provision prescribing the period of one year for
making of the applications, Article 58 of the Limitation Act, 1963,
cannot be invoked. In Ghulam Rasool Lone it was held that even if a
person claims equity he should enforce his claim within
reasonable time rather than sitting on the fence waiting for time at
will. For these reasons, we are convinced that the tribunal could
not have entertained the Original Applications without there being a
prayer for condonation of delay. The fact that similarly placed
persons got relief from the tribunal cannot be a ground to ignore
the absolute bar created under Section 21 of the Act. We will now
take up the question as to whether the applicants can be denied
the relief which was given to those other persons in the earlier
cases.
The creation and abolition of posts is executive
prerogative. The Court has no say in either creation or abolition of
posts; a mandamus cannot issue to create posts or fill up the
vacant posts. A person who participates in the selection process
cannot claim any enforceable right of inclusion in the list of
selectees, although he/she has a limited right of being considered
for a public post under Article 16(1) of the Constitution (Shankarsan
Dash v Union of India ). A person whose name appears in the
select list does not acquire any indefeasible right of appointment.
The empanelment is only condition of eligibility for appointment.
Such a person cannot complain discrimination violating Articles 14
and 16(1) of the Constitution and seek a direction to fill up unfilled
vacancies because filling up of vacancies over the notified
vacancies amounts to filling up of future vacancies which is not
permissible in law (Rajkishore Nanda). Even where a select list is
prepared it expires after the appointments are made and at a
belated stage the Court cannot grant any relief. A select list
cannot be treated as reserve for the purpose of appointments so
that vacancies can be filled up taking the names from that list as
and when it is required. In a situation where the advertised
vacancies remained unfilled or the recruiting authority decides not
to fill up all those vacancies or those persons selected expressed
their disinclination to join the post, the Courts/tribunals cannot
issue directions to the State to initiate selection process to fill up
vacancies or to fill up the vacancies with the empanelled selectees
(Rajkishore Nanda).
Further more, when once the selections are completed and
a fresh recruitment notification is issued inviting the applications to
fill up the fresh vacancies or to fill the unfilled vacancies or
selections made pursuant thereto cannot be operated, no person
included therein can claim a right to be appointed to the vacancies
which are already advertised subsequently. Any such move would
certainly violate the equality clause in the Constitution and will
violate the right to public employment who acquired eligibility for
the post subsequent to the issue of the first notification. Applying
these principles we have to hold that the directions issued by the
tribunal to reformulate the creamy layer policy and then consider
the applicants against the BC vacancies is certainly not in
accordance with law. Such directions cannot be sustained.
More often than not, in service law the cases are filed in
clusters. If the Court/tribunal grants some relief, that is not end of
day. Many people pick up the thread and start pouring in into the
Courts and tribunals seeking similar relief. If the relief granted in
the first cluster of cases is unsustainable or if the "fence sitters"
approach the tribunal belatedly what should be the approach in
granting relief to them? The law in this area appears to be well
settled. An illegality or mistaken decision does not confer any
enforceable right by a mandamus. The Bench dealing with the
subsequent cases can always ignore the earlier mandate on the
ground that the relief granted earlier is not legally sustainable.
Ghulam Rasool Lone is directly on the point. The facts
therein are some what similar and require to be stated. In 1987
constable Abdul Rashid Rather and six others instituted a writ
petition in Jammu & Kashmir High Court seeking promotion to the
post of Sub Inspector. The learned single Judge as well as the
Division Bench granted relief. The Special Leave Petition
thereagainst was dismissed. In 1997 four more constables filed
similar writ petition. The learned single Judge allowed it which
was reversed by the Division Bench. The constables then
approached the Supreme Court and their appeal was allowed on
01.08.2008 (Maharaj Krishan Bhatt v State of Jammu & Kashmir ).
In the meanwhile, Ghulam Rasool Lone filed a writ petition which
was allowed by the learned single Judge, but reversed by the
Division Bench. The Supreme Court considered the only question
as to whether the Division Bench was wrong in denying the relief
to Lone. Dismissing the appeal, the Supreme Court observed as
under.
It is now well settled that who claims equity must enforce
his claim within a reasonable time...
It is beyond any cavil of doubt that the remedy under
Article 226 of the Constitution of India is a discretionary one.
For sufficient or cogent reasons a court may in a given case
refuse to exercise its jurisdiction; delay and laches being one
of them. While considering the question of delay and laches
on the part of the petitioner, the court must also consider the
effect thereof.
...
It will bear repetition to state that the petitioner waited till
Abdul Rashid Rather was in fact promoted. He did not
consider it necessary either to join him or to file a separate
writ petition immediately thereafter, although even according
to him, Abdul Rashid Rather was junior to him. The Division
Bench, therefore, in our opinion rightly opined that the
petitioner was sitting on the fence.
...
We understand that there would be a heart burning insofar
as the petitioner is concerned, but then he is to thank himself
therefor. If those five persons, who were seniors to
Hamiddulah Dar filed writ petitions immediately, the High
Court might have directed cancellation of his illegal promotion.
This Court in Maharaj Krishan Bhatt v State of J & K ((2008) 9
SCC 24) did not take into consideration all these aspects of the
matter and the binding decision of a three-Judge Bench of this
Court in Govt. of W.B. v. Tarun K. Roy ((2004) 1 SCC 347).
The Division Bench of the High Court, therefore, in our opinion
was right in opining that it was not necessary for it to follow
Maharaj Krishan Bhatt.
I n Bharat Sanchar Nigam Limited v Ghanshyam Dass a
three judge Bench laid down that where only the effected parties
approach the Court and relief is given to those parties, the fence
sitters who did not approach the Court cannot claim that such
relief should have been extended to them thereby unsettling or
interfering with the rights which had accrued to others. Applying
these principles we are convinced that the petitioners cannot claim
equity as they failed to enforce it within reasonable time. The
notification for fresh recruitment has been issued on 31.10.2011
and any order in favour of the applicants would certainly unsettle
things and interfere with the rights of those appointed BC
candidates. When such affected parties are not made even in
representative capacity as party respondents to OAs, the relief
could not have been granted to the applicants (Prabodh Verma v
[22] [23]
State of Uttar Pradesh , Ishwar Singh v Kuldip Singh , Arun
Tewari v Zila Mansavi Shikshak Sangh and Mamta Bisht).
In the result, we hold that the impugned orders in O.A.Nos.
8003, 8004, 8281, 8628, 8629, 8687, 8688, 8808 and 8870 of 2011,
dated 30.12.2011; 8000, 8231, 8232, 8241 and 8260 of 2011, dated
20.12.2011; and 8581, 8584, 8585 and 8927 of 2011, dated
19.01.2012, of the tribunal suffer from grave error apparent on the
face of the record warranting the issue of writ of certiorari.
A writ shall issue accordingly quashing the impugned orders of the
APAT. The Writ Petitions are allowed. The miscellaneous
petitions, if any, shall stand disposed of. There shall be no order
as to costs.
_______________
(V.V.S.RAO, J)
________________________________
(G.KRISHNA MOHAN REDDY, J)
19.04.2012
Note: LR copy to be marked.
B/o.
vs
(1989) 4 SCC 582
(1998) 7 SCC 123
2002 Suppl. (1) ALD 137 (DB)
(2009) 15 SCC 321
(2010) 6 SCC 777
(2010) 12 SCC 204
AIR 1990 SC 2059
AIR 1993 SC 477 : 1992 Supp (3) SCC 217
(2010) 6 SCC 545
(1996) 6 SCC 506
(2007) 4 SCC 1
(2007) 4 SCC 361
(1997) 7 SCC 592
AIR 1998 SC 1703
AIR 1951 SC 467
AIR 1965 SC 722
(2003) 6 SCC 675
(2010) 8 SCC 685 : AIR 2010 SC 3043
AIR 1991 SC 1612
(2008) 9 SCC 24
(2011) 4 SCC 374
AIR 1985 SC 167
1995 Supp (1) SCC 179
AIR 1998 SC 331
