HON'BLE Sr.JUSTICE R.SUBHASH REDDY And HON'BLE Sr.JUSTICE A.V.SESHA SAI WRIT PETITION Nos.9719 of 2012 and batch 18-02-2014 Government of Andhra Pradesh, rep.
by its Principal Secretary, Home Department & others......Petitioners B.
Prabhakar & others......Respondents.
For Appellants :The Addl.
Advocate General.
For Respondents:Sr.G.
Vidyasagar & Sr.V.Maheshwar Reddy, Advocates.
: ?.
CITATIONS: 1.
AIR2007SC31272.
(1995) 5 SCC1733.
(2010) 12 SCC204HON'BLE Sr.JUSTICE R.
SUBHASH REDDY And HON'BLE Sr.JUSTICE A.V.SESHA SAI WRIT PETITION Nos.9719, 17054, 17062, 17063, 17085 and 17090 of 2012, 5196 & 7074 of 2013 COMMON ORDER
: (Per Justice R.Subhash Reddy) This batch of writ petitions are filed by the official respondents in the original petitions filed before the Andhra Pradesh Administrative Tribunal, Hyderabad, questioning the orders passed by the Tribunal, directing them to appoint the respondents herein under Police Executive quota/Children of Police Personnel and NCC quotas, as Stipendiary Cadet Trainee Sub-Inspectors (Civil).by recasting the selection list.
Writ petitions in W.P.Nos.9719, 17054, 17062, 17063, 17085 and 17090 of 2012 are filed against the common order dated 10.02.2012, passed in six O.As.
i.e.O.A.Nos.8346, 8432, 8572, 8574 and 8575 of 2011, W.P.No.5196 of 2013 is filed against the order dated 21.11.2012, passed in O.A.No.10372 of 2011 and W.P.No.7074 of 2013 is filed against the order dated 31.12.2012, passed in O.A.No.2844 of 2012, disposing of the same with similar directions as in the other applications.
As common questions of law arise for consideration on similar set of facts, all these writ petitions are heard together and are being disposed of by this common order.
For the purpose of disposal, we refer to the facts as arise in W.P.No.17062 of 2012.
By the impugned orders passed by the Tribunal in the applications filed by the respondent/applicants under Section 19 of the Administrative Tribunals Act, 1985, the Tribunal faulted the procedure adopted by the petitioners herein in making selections for filling up of various posts of Stipendiary Cadet Trainee Sub-Inspectors (Civil) (AR).(APSP) (Men).apart from other posts.
The Tribunal issued directions to regularize the selection list and issue appointment orders to the applicants as per their merit and send them for training as expeditiously as possible.
The 3rd petitioner herein has issued notification in Rc.No.671/ R&T/General.I/2008, dated 30.12.2008, inviting applications from eligible candidates for filling up various vacant posts of Stipendiary Cadet Trainee Sub- Inspectors (Civil) (AR).(APSP) (Men) apart from other posts.
The 1st respondent/applicant in O.A.No.8572 of 2011 is working as a Police Constable.
He comes within Police Executive category, for which, there is separate reservation as per Rules.
He also belongs to BC-B community and secured 227 marks in the written examination.
It is stated that the cut-off mark in Zone-VI for O.C.(Gen.) is 275, for BC-A is 242, BC-B is 265 and for Police Executive (PE) category is 233.
It is his case that as he secured 227 marks, he is not eligible for selection under BC-B category, as the cut-off mark in the said category is 265.
It is his further case that the unofficial respondents in O.A.No.8572 of 2011, who were selected under Police Executive quota to the post of Sub-Inspector (Civil).secured 244, 248 and 233 marks respectively and they belong to BC-A category.
It is stated that the unofficial respondent No.7 belongs to SC category and the cut-off mark in SC category in Zone-VI is 221.
It is his allegation that respondents 5 and 6 in the O.A., who belong to BC-A category and who secured 244 and 248 marks respectively, were not selected in BC-A category, as such, it was his case before the Tribunal that they should have been selected under BC-A category as they secured more marks than the last selected candidate in the said category, however, they are selected in Police Executive quota, for which, the applicants are also eligible for selection.
Similarly respondent No.7 in the O.A.secured 233 marks, whereas the cut-off mark in Zone-VI for SC candidates is 221 marks, as such, he should have been accommodated in SC (Gen.) quota instead of selecting under Police Executive quota.
Thus, it is the case of respondent/applicants that the petitioners herein should have accommodated high-scorers in their respective communal quotas while accommodating the persons who scored less, in Police Executive quota and similar other quotas, namely, Children of Police Personnel (CPP) quota etc.Precisely, it is their case that had the unofficial respondents in the O.A.were accommodated in their respective communal categories as they were the next meritorious candidates in Police Executive quota and other quotas, namely, sports quota, CPP quota etc., they are unduly deprived of selection.
In all the batch cases, the applicants sought directions to accommodate the unofficial respondents in the O.As., who were selected under special categories to accommodate them in communal reserved categories, as they secured more marks than the last selected candidates in such categories and to appoint them in the quotas of Police Executive, Children of Police Personnel, NCC, etc., by recasting the selection list.
Before the Tribunal, petitioners have filed counter affidavit, but in the said counter affidavit, they did not dispute that the persons who got more marks than the last candidates selected in their respective communal categories, were considered in special categories.
The Tribunal, while considering various contentions and mainly relying on the judgment of Hon'ble Supreme Court in the case of Rajesh Kumar Daria versus Rajasthan Public Service Commission1, has issued directions for recasting the selection list.
It is submitted that having regard to the rule position in the present rules, the said judgment cannot be applied.
It is further submitted that as unofficial respondents in the O.As.
claimed reservation in special categories, their cases were considered in special categories, as such, there is no illegality in the procedure adopted by the petitioneRs.Reliance is placed on the judgment in the case of Anil Kumar Gupta & others versus State of U.P.& others2, wherein the Hon'ble Supreme Court has detailed the procedure for filling up the vacancies while effecting horizontal reservations.
On the other hand, it is submitted by Sr.G.Vidya Sagar and Sr.V.Maheshwar Reddy, learned counsel appearing for respondents that the selection procedure adopted by the petitioners is contrary to several judgments of the Hon'ble Supreme Court.
It is further submitted that when candidates were coming up for selection with their merit in communal reservations like BC, SC and ST etc., there is no reason to show such candidates against the quota meant for special categories, namely, Police Executive, NCC, Sports, Children of Police Personnel, etc.It is submitted that if the procedure adopted by the petitioners is to be approved, it will defeat the very object of reservations for special categories.
Apart from relying on the judgment in Rajesh Kumar Daria's case (1 supra) relied on by the Tribunal, the learned counsel have also placed reliance on the judgment of Hon'ble Supreme Court in Public Service Commission, Uttaranchal versus Mamta Bisht & others3.
The recruitment procedure to the posts of Stipendiary Cadet Trainee Sub- Inspectors (Civil) (AR).(APSP) (Men).etc., is governed by the Rules framed under proviso to Article 309 of the Constitution of India, which are titled as the Andhra Pradesh Police (Stipendiary Cadet Trainee) Rules, 1999, framed vide G.O.Ms.No.315, Home (Police-C).dated 13th October 1999.
Certain amendments were made to the said Rules vide orders issued by the Government in G.O.Ms.No.97, Home (Legal-II).dated 01.05.2006.
By the aforesaid amendments, Rule 3 of the original Rules is substituted and the substituted Rule reads as under : ".for Rule 3, the following shall be substituted, namely:- 3 (A) Qualifications:- The qualifications (Academic, age and Physical Standards) for various categories included in these rules shall be as specified in the Annexure-I appended to these rules.
The upper age limits prescribed under clauses (b) and (c) of sub-rule (1) of rule 12 of Andhra Pradesh State and Subordinate Service Rules 1996 shall apply.
The upper age limit for the H.Gs who fall within the definition specified in these rules shall not have crossed 30 years of age in respect of recruitment to the following categories (i) SCT PC (Civil) (Men & Women) (ii) SCT PC (AR) (Men & Women).(iii) SCT PC (APSP) (Men).(iv) SCT PC (SAR CPL) (Men).(B) Vacancies :- All substantive vacancies as well as the vacancies that are likely to arise upto the 1st September of the year in which notification for recruitment is issued shall be taken into account for that particular recruitment.
(C) The rule of Special representation (reservation) provided, in Rule 22 of A.P.State & Subordinate Service Rules, 1996 shall be applicable except in the case of special categories referred to in rule 3 (D) of these rules.
(D) Special categories :- The various special categories and the eligibility criteria to be included in each of them are as below: (i) PE (Police Executive) - Police Constables, Head Constables and Assistant Sub-Inspectors of Police working in A.P.Police department, who are approved probationers and who have completed three years of service as on the date of notification.
(ii) PM (Police Ministerial) - Persons working in A.P.Police department in the ranks which correspond to the following categories as specified in Rule 2 of A.P.Ministerial Service Rules, 1998, provided they are approved probationers and have completed three years of service as on the date of notification: (a) Category (2) and (3) of Class-A (b) Category (2) and (4) of Class-B.
(iii) Ms.(The Meritorious Sports Person) - Persons who satisfy the definition in Rule 2 (19) of A.P.State and Subordinate Service Rules, 1996 and who possess the necessary certificate issued by the competent authority as on the date of notification.
This special category is sub-divided as below : (a) Persons who won medals or who participated in games/sports at the international level.
(b) Persons who won medals or who participated in games/sports at the National level and at the All India University tournaments and All India School games.
(c) Persons who won medals or who participated in games/sports in Zonal Inter University tournaments.
Persons who come under category (a) above shall be preferred initially to fill the vacancies under Ms.special category.
If sufficient number of candidates are not available, then the candidates from category (b) and thereafter from category (c) shall be considered.
(iv) Children of Police Personnel :- Children of Police Personnel upto the rank of Inspector of Police in A.P.Police department who are either in service or retired or died.
(v) Home Guards :- Persons who, as on the date of notification, have been on duty as Home Guards for a minimum duration of 360 days within a period of two years and who are still continuing their service as Home Guards.
(vi) CDI - (1) Children of Police Personnel of A.P.Police department who (a) died due to violent action of extremists/Criminals/anti-social elements or (b) were incapacitated and were retired on medical invalidation due to violent action of the extremists/criminals/anti-social elements and (2) Children of Police Personnel of Andhra Pradesh Police department who (a) died due to violence while on duty or (b) were incapacitated and were retired on medical invalidation due to violence while on duty.
(vii) NCC - National Cadet Corps - Candidates who possess NCC 'C' certificate shall be preferred.
If sufficient number of candidates are not available, then the candidates who possess NCC 'B' certificate will be considered.
If vacancies still remain unfilled then the candidates who possess NCC 'A' certificate will also be considered.
Note: (i) The vacancies which remain unfilled in any of the above special categories for want of eligible candidates shall be added to the vacancies to be filled by direct recruitment.
(ii) The Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Director Recruitment) Order, 1975 shall apply to the special categories also.".
For the purpose of recruitment, the State Level Police Recruitment Board has issued notification dated 30.12.2008 in Rc.No.671/R&T/Genl.1/2008, inviting applications from eligible candidates to the posts covered by Post Code Nos.11, 12 and 13.
Post Code No.11 relates to Stipendiary Cadet Trainee Sub-Inspectors of Police (Civil)(Men).Post Code No.12 is for Stipendiary Cadet Trainee Reserve Sub-Inspector of Police (AR)(Men) and Post Code No.13 is for Stipendiary Cadet Trainee Reserve Sub-Inspector of Police (APSP)(Men) in Police Department.
1100 vacancies are shown for Post Code No.11, 169 for Post Code No.12 and 24 vacancies for Post Code No.13.
Clause 3 of the notification reads as under : ".The rule of Special representation (reservation) i.e.BC-A, BC-B, BC-C, BC-D, BC-E, SC, ST and Ex.Servicemen provided in Rule 22 of A.P.State & Subordinate Service Rules, 1996 will be applicable except in the case of special categories i.e.Police Executive, Police Ministerial, MSP, CPP, CDI and NCC.".
In Clause 16 of the notification, quotas for special categories are mentioned.
Clause 16 (a)(i) provides the quota for special categories in the posts covered by Post Code Nos.11 and 13, whereas Clause 16 (a)(ii) provides the quota for special categories in Post Code No.12.
For all the posts covered by Post Code Nos.11, 12 and 13, there is reservation for Police Executive category (PE).Police Ministerial (PM).Meritorious Sports Persons (MSP).Children of Police Personnel (CPP).CDI and NCC.
In this case, it is not in dispute that the unofficial respondents in the O.As, who are shown to have selected under special category, also belong to either BC, SC or ST categories and it is also not disputed that they scored more marks than the last candidates selected in the respective communal categories.
It is the case of petitioners that firstly, they have considered the general category, then they filled up special categories and thereafter they have taken up communal category.
It is the case of respondent/applicants that the vacancies meant for special category should be filled up separately after making selections in the merit list by filling up general categories either under open or under reserved categories covered by Rule 22 of the A.P.State and Subordinate Service Rules, 1996.
Having regard to the marks secured by unofficial respondents in O.As., it is not in dispute that they were coming up for selection in their respective communal categories, as much as they are better scorers than the last selected candidates under social reservations, namely, BC, SC, ST etc.A perusal of the Rules, namely, A.P.Police (Stipendiary Cadet Trainee) Rules, framed vide G.O.Ms.No.315, dated 13.10.1999 shows that as the posts which are being filled up are Sub-Inspectors relating to Police service, they have provided special reservation under the Police Executive category, Children of Police Personnel category, NCC and under Police Ministerial category.
In the judgment in Rajesh Kumar Daria's case (1 supra).while considering the earlier judgment in Anil Kumar Gupta's case (2 supra).which is relied on by the learned Government Pleader, the Hon'ble Supreme Court has held as under in paragraphs 7, 8 and 9 : ".7.
A provision for women made under Article 15(3).in respect of employment, is a special reservation as contrasted from the social reservation under Article 16(4).The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta versus State of U.P.thus: (SCC p.185, para 18) thus : ".The proper and correct couRs.is to fiRs.fill up the Open Competition quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e., S.C., S.T.and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis.
If the quota fixed for horizontal reservations is already satisfied - in case it is an overall horizontal reservation - no further question arises.
But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom.
(If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations.
In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.) [emphasis supplied].8.
We may also refer to two related aspects before considering the facts of this case.
The fiRs.is about the description of horizontal reservation.
For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be : ".For SC : 30 posts, of which 9 posts are for women".We find that many a time this is wrongly described thus : ".For SC : 21 posts for men and 9 posts for women, in all 30 posts".Obviously, there is, and there can be, no reservation category of 'male' or 'men'.
9.
The second relates to the difference between the nature of vertical reservation and horizontal reservation.
Social reservations in favour of SC, ST and OBC under Article 16(4) are 'vertical reservations'.
Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are 'horizontal reservations'.
Where a vertical reservation is made in favour of a backward class under Article 16(4).the candidates belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non- reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective backward class.
Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled.
The entire reservation quota will be intact and available in addition to those selected under Open Competition category.
[Vide - Indira Sawhney (Supra).R.K.Sabharwal versus State of Punjab (1995 (2) SCC745, Union of India versus Virpal Singh Chauvan (1995 (6) SCC684and Ritesh R.
Sah versus Dr.Y.L.
Yamul (1996 (3) SCC253].But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations.
Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is fiRs.to fill up the quota for scheduled castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled Castes-Women'.
If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota.
Only if there is any shortfall, the requisite number of scheduled caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes.
To this extent, horizontal (special) reservation differs from vertical (social) reservation.
Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.
Let us illustrate by an example : If 19 posts are reserved for SCs (of which the quota for women is four).19 SC candidates shall have to be fiRs.listed in accordance with merit, from out of the successful eligible candidates.
If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate.
On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates.
(But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four.)".
Further, in another judgment relied on by the learned counsel appearing for the respondent/applicants in Mamta Bisht's case (3 supra).the Hon'ble Supreme Court has held that the special reservations are horizontal reservations and reservations for socially backward classes are vertical reservations.
It is further held that if reserved candidates under horizontal reservations competes against non-reserved posts and if they are appointed under non-reserved category, their number will not be counted against the reserved quota.
From the aforesaid judgment rendered by the Hon'ble Supreme Court in Anil Kumar Gupta's case (2 supra).it is clear that if the candidates claiming reservation under special category come up for selection while filling up the vacancies vertically, their candidature cannot be counted against social reservations.
The unofficial respondents in the O.As., who are selected under various special categories, have secured more marks than the last selected candidates in the respective communal categories.
In that view of the matter, there is no reason for appointing such persons in special category in deprivation of the benefit of special reservation to the respondent/applicants.
Though a distinction is sought to be drawn with reference to the Rules applicable in Rajesh Kumar Daria's case (1 supra).having regard to the rule position in the rules framed for filling up the posts of Stipendiary Cadet Trainee Sub-Inspectors (Civil) (AR).(APSP) (Men) and the notification issued, it is clear that separate reservations are provided for special categories, in which event, the procedure adopted by the petitioners is not in conformity with the settled position as laid down by the Hon'ble Supreme Court.
In that view of the matter, the Tribunal has rightly issued directions in favour of respondent/applicants.
It is submitted that there were interim orders in the batch of O.As.
in O.A.No.8346 of 2011 and batch, directing the petitioners herein to keep six posts vacant meant for Police Executive and Children of Police Personnel in the relevant zone, but however, it is stated that all the vacancies are filled up and selections were finalized on 23.09.2011 before passing of orders by the Administrative Tribunal.
In the additional affidavit, it is categorically stated that vacancies arise regularly and there will be several vacancies available at any given point of time.
In view of the clear directions to keep six posts vacant in the batch of O.As.
in O.A.No.8346 of 2011 and batch, there is no reason to accept the statement that all the vacancies were filled up.
Even if the selections were finalized on 23.09.2011, as stated in the additional affidavit, in view of the interim orders passed by the Tribunal on 19.12.2011, by all fairness, petitioners should not have filled up such vacancies without obtaining further orders from the Tribunal.
In any event, as it is indicated in the affidavit that there will be several vacancies at any given point of time, and as we are of the view that the respondent/applicants were deprived of selections illegally by following the procedure contrary to the norms approved by the Hon'ble Supreme Court in similar situations in the judgments referred above, we are of the view that even if all the posts are filled up, petitioners have to accommodate the respondent/applicants in the existing or future vacancies.
For the aforesaid reasons, we do not find any merit in these writ petitions, warranting interference in the orders passed by the Tribunal.
All the writ petitions are accordingly dismissed.
No order as to costs.
Miscellaneous applications pending, if any, in these writ petitions, shall stand closed.
_____________________ R.
SUBHASH REDDY, J _________________ A.V.SESHA SAI, J18h February 2014