ORDER
V.V.S. Rao, J.
1. Petitioner statedly passed B.A., degree course. She also acquired technical qualification in Typewriting English Higher grade. She belongs to Scheduled Caste (SC). When second respondent herein issued notification dated 23.9.2003 inviting applications inter alia for six posts of Typists, petitioner applied for the post on 20.10.2003. Written test was conducted on 10.12.2006. Interviews were held on 11.12.2006. Petitioner was also one of the candidates, who were interviewed. She alleges that she was only candidate in SC(A) category. Nonetheless she was not selected. Instead third respondent herein was selected. Petitioner contends that when employment notification was issued, one vacancy was earmarked for SC(A) (Women) and that she being the only SC(A)(Women) candidate, she cannot be denied appointment. She further contends that appointment of third respondent Who belongs to SC(B)(Women) category against SC(A) vacancy is illegal and violative of Article 14 of Constitution of India.
2. Petitioner made application dated 18.5.2007 to first respondent under Section 6 of Right to Information Act 2005, requesting for copies of list of selectees for the post of Typists approved by High Court of Andhra Pradesh in the District unit of East Godavari, office note and orders passed by Judges concerned and records pertaining to selection of candidates for the post in the District unit. She made yet another application of even date to District Judge, Rajahmundry, requesting for copies of notification, approved list, selectees list and appointment orders issued to SC(A) and SC(B) candidates for the post. On 24.8.2007 State Public Information Officer of High Court passed a detailed order rejecting application of petitioner seeking information. Thereafter petitioner filed instant writ petition seeking writ of Mandamus declaring action of respondents in not issuing posting order to her and to set aside appointment order issued in favour of third respondent. She also seeks further direction to second respondent to issue posting orders to her for the post of Typist.
3. The District Judge, East Godavari, filed counter affidavit opposing writ petition. Contents of the same in brief are as follows. Petitioner who belongs to SC(A) category secured 51.5 marks in aggregate in written test, skill test and interview, and third respondent who belongs to SC(B) secured aggregate of 59.25 marks. Notification was issued on 07.10.2003. At that time Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act 2000 (Rationalisation Act, for brevity) providing classification of SC candidates into A, B, C & D categories, was in force. In compliance thereof employment notification was issued, keeping in view roster points for six Typist posts, reserving roster point Nos. 2 and 7 to SC(A)(Women) and SC(B)(General) respectively. Rationalisation Act was declared ultra vires the Constitution by Supreme Court on 05.11.2004 in E.V. Chinnaiah v. State of A.P. : AIR2005SC162 . Government also issued consequential orders in G.O.Ms. No. 91, dated 23.11.2004, cancelling classification of SCs into A, B, C & D categories. In view of this though petitioner being lone SC(A)(Women), in view of judgment in E.V. Chinnaiah (supra) and also in view of orders of Government, two vacancies reserved for SC(A)(W) and SC(B)(General) at roster point Nos. 2 and 7, were filled up by appointing third respondent herein who got 59.25 marks against roster point No. 2, and Dulapalli Sanyasi Rao who got 60.88 marks against roster point No. 7. High Court also approved the same in proceedings dated 11.4.2007.
4. Learned Counsel for petitioner submits that while making reservations to posts, law which existed as on the date of notification should be applied. He would urge that by the date of notification on 07.10.2003, Rationalisation Act was upheld by Full Bench of High Court in Mallela Venkata Rao v. State of A.P. : 2000(6)ALD555 and therefore even if judgment of Full Bench is reversed by Supreme Court in E.V. Chinnaiah (supra), same cannot be applied retrospectively. Alternatively learned Counsel submits that having regard to the decision of Supreme Court in E.V. Chinnaiah (supra), respondents ought to have issued a fresh notification cancelling earlier notification as otherwise appointing third respondent against vacancy reserved for SC(A) would be illegal. Per contra, learned Standing Counsel for respondents 1 and 2 submits that when Rationalisation Act was declared ultra vires, same dates back to the date when Rationalisation Act was brought into force and for all purposes and purport, Rationalisation Act could not have been enforced. Secondly he submits that as categorization of SCs stood cancelled by reason of consequential orders issued by Government, appointments were completed applying roster and therefore there is no illegality in appointing third respondent who secured higher marks than petitioner.
5. In view of the submissions of the counsel, the only point that arises for consideration is whether second respondent is bound to make appointments as per the notification, in which, the posts reserved for scheduled castes were categorized in accordance with the Rationalisation Act or second respondent was required to provide for rule of reservations as per the communal roster provided in Rule 22 of A.P. State and Subordinate Service Rules, 1996 (hereafter called, General Rules).
6. Rule 22 of General Rules provides that in every direct recruitment appointment shall be made in accordance with communal roster containing hundred points. The communal roster applies to unit of hundred posts. The communal roster takes care of rule of reservation for the reserved categories, namely, SCs, STs and BCs at 15%, 6% and 25% respectively. Roster points 2, 7, 16, 22, 27, 41, 47, 52, 62, 66, 72, 77, 87, 91 and 97 are reserved for SCs, out of which roster points 2, 22, 47, 66 and 87 are reserved for SC (Women). The system of communal roster was being implemented in the State of Andhra Pradesh atleast from 1972. In 1999, there was statewide agitation by people belonging to SC community for rationalisation of reservations for SCs. Their grievance was that all posts reserved for SCs are being garnered by dominant SC communities. Therefore, the Government of Andhra Pradesh appointed Justice P. Ramachandra Raju Commission of Enquiry to examine two questions, namely, (i) whether disproportionately large number of benefits have gone to a particular sub caste of SCs; and (ii) if so, to indicate all such steps as are necessary and required to be taken to ensure that the above benefits are equally distributed amongst various sub castes of SCs.
7. Justice Ramachandra Raju Commission submitted report. Its conclusions were that large number of benefits of reservation were disproportionately gone to a particular subsect of SCs. The Commission, therefore, recommended to distribute fifteen percent reserved quota proportionately among all the SCs. Accepting the report, the Government of Andhra Pradesh issued executive orders. All the SCs were categorized as 'A', 'B', 'C and 'D', and they were provided reservation in public employment and educational institutions in the ratio of one percent, seven percent, six percent and one percent respectively. These Government orders being G.O.Ms. No. 68, dated 06.06.1997 and G.O.Ms. No. 69, dated 07.06.1997, on challenge, were quashed by Full Bench of this Court in B. Narayana v. Government of A.P. : 1997(5)ALT292 . The State Government consulted National Commission for Scheduled Castes as envisaged under Article 338(9) of Constitution of India. The proposal for categorization of SCs was rejected by National Commission though they recommended for national level study aimed at ameliorating the malady of certain communities cornering reservations provided for. In the meanwhile, the State Government having consulted with President of India issued A.P. Ordinance No. 6 of 1999 providing for categorization of SCs. The Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Rules, 2000 (Rationalisation Rules, for brevity) were also made thereunder. The Ordinance and later Rationalisation Act was challenged before this Court as being violative of Article 341 and Articles 14, 15 and 16 of Constitution of India.
8. The Full Bench in Mallela Venkata Rao (supra), upheld the Constitutional validity of Rationalisation Act. The Judgment of the Full Bench was assailed in E.V. Chinnaiah (supra) before apex Court. A Constitution Bench of Supreme Court reversed High Court judgment and declared Rationalisation Act ultra vires the Constitution.
9. As noticed supra, for the purpose of Rule 22 of General Rules, a unit of appointment shall be hundred vacancies, in which fifteen (15) shall be reserved by SCs, six (6) for STs and twenty five (25) for BCs subject to Rule 22A, which provides for preference to women in specified manner. After the Judgment of Supreme Court in E.V. Chinnaiah (supra) declaring the Rationalisation Act ultra vires the Constitution, earlier position under Rule 22 providing for reservation by adopting a communal roster in unit of hundred vacancies is revived. As per this, roster points 2 and 7 are reserved for SC (Women) and SC (general) respectively. Here it may be noticed that Section 3 of Rationalisation Act classified SCs into A, B, C and D categories and provided one percent, seven percent, six percent and one percent respectively from out of fifteen percent positions reserved for SCs. The modalities for providing such reservation was entrusted to the Government empowering them under Section 7 of Rationalisation Act to make Rules for fixation or adjustment of roster points for SCs including women for the purpose of public service. Accordingly, Rule 3 of the Rationalisation Rules provided that roster point No. 2 be reserved for SC(Women), roster points 7,22, 41, 62, 72, 87 and 97 for SC(B), roster points 16, 27, 47, 66, 77 and 91 for SC(C) and roster point No. 52 for SC(D). Thus, fifteen positions in communal roster, which were earmarked for SCs were distributed among four categories of SCs referred to in Section 3 of the Rationalisation Act. This was the basis when the learned District Judge issued notification No. 2, dated 07.10.2003 inviting applications for the posts of Typists.
10. The Judgment of Supreme Court in E.V. Chinnaiah (supra) was decided on 05.11.2004, written tests and interviews were conducted on 10.12.2006 and 11.12.2006. After selections, third respondent was appointed on 26.04.2007 as she secured more marks among SC women and she was appointed against roster point No. 2, which was earmarked for SC(Women). Having regard to the decision of Supreme Court in E.V. Chinnaiah (supra) which declared Rationalisation Act ultra vires, the categorization of SCs into four sub groups was not in force and could not have been given effect to. Indeed, Supreme Court in E.V. Chinnaiah (supra) did not save the employment notifications or appointments which were issued/made when Rationalisation Act and Rules were in force. Therefore, it was incumbent on all the public authorities to ignore Rationalisation Act and proceed in accordance with law, which existed prior to coming into force of said Act. The second respondent was therefore right in ignoring SC categorization and appointing third respondent treating all SC candidates as one class. The third respondent secured more aggregate marks, and therefore, her appointment does not suffer from any invalidity.
11. Learned Counsel for petitioner, however, submits that the Judgment of Supreme Court in E.V. Chinnaiah (supra) delivered on 05.11.2004 has no application to the selection process, set in motion by issue of notification on 07.10.2003. According to learned Counsel, the Rules and Regulations dealing with qualifications, service conditions and reservations which existed as on the date of issue of notification must be strictly adhered even if such rules stood altered and amended subsequent to the issue of employment notification. This submission is unsound and strictly does not arise in the background facts, for the reasons in ensuing paragraphs.
12. An Act made by legislature takes birth with certain presumptions. Important of them are (i) that such Act made by competent legislature is Constitutionally valid; and (ii) it operates prospectively from the date on which it comes into force or brought into force. An Act is challenged on the ground that it is made by incompetent legislature without subject specific legislative power and on the ground that it is unconstitutional by reason of the fact that it is violative of fundamental rights and/or it violates other Constitutional provisions. In either of these cases, if the plea is accepted, the Act is rendered unconstitutional and the Constitutional Court in exercise of its power of judicial review declares the impugned legislation ultra vires the Constitution and unenforceable. Being a coordinate branch, the judiciary never strikes down or quashes an incompetent unconstitutional legislation (see Prabodh Verma v. State of U.P. : [1985]1SCR216 ). It only declares legislative enactment ultra vires. When a law is declared ultra vires, the same does not stand removed from statute book of State. It only remains unenforceable. Even in case, where the law is not specifically repealed because it is declared ultra vires the Constitution, the executive cannot enforce such law. In other words, the executive can enforce only such law, which is Constitutionally valid either because of unimpeached presumption it carries or because it is so held by Constitutional Court. Having suffered Constitutional invalidation, a law made by legislature remains unenforceable from the day it is passed or from the day it has been brought into force notwithstanding the fact that such law was declared ultra vires by the Court after lapse of some time. Even if the law is declared ultra vires by the Court after lapse of some length of time still the law suffers from unenforceability from the day it is passed or from the day it is brought into force.
13. In the event of a law being declared ultra vires the Constitution, after lapse of some time from the date of such law coming into force, as a necessary corollary it is not permissible for anybody to contend that the law suffers from invalidation only from the date of Judgment of the Court. Nonetheless, the competent Court - in India, Supreme Court of India; can invalidate or declare a law ultra vires prospectively by applying the doctrine of 'prospective overruling'. The devise is resorted to reduce the adverse effects of such Constitutional invalidation by the Court, after some length of time. As otherwise, when the law is declared ultra vires and unenforceable, the same remains ultra vires and unenforceable from the day it came into force.
14. The Judgment of Supreme Court or the High Court is always retrospective. When a declaratory relief is sought (as in the case of challenge to a legislative Act) the effect of declaration would not only be from the date of Judgment of the Court but it can be a declaration in rem or a declaration anterior to filing of the case or decision on the case. An incompetent legislation declared as such and ultra vires, is deemed never to have been valid. From the day it is passed it is invalid, even if such Court declaration comes some years after initial notification of enforcement.
15. In Shenoy & Company v. Commercial Tax Officer, Bangalore : [1985]155ITR178(SC) , the fact of the matter shows that Karnataka Tax on Entry of Goods into Local Areas for Consumption, Use or Sale Therein Act, 1979 was declared invalid by Karnataka Bench and Mandamus was issued forbearing the State from proceeding under the Act. On appeal by the State, Supreme Court upheld the validity of the said Act, 1979 Act was repealed by another Act in 1980, which is also replaced by Act of 1981. The authorities issued notices to dealers including those who had challenged 1979 Act. Therefore, they filed writ petitions contending that when State did not file appeals against the orders in their favour, Supreme Court Judgment cannot rescue the situation. The learned single Judge as well as Division Bench did not accept the plea and the writ petitions were dismissed. In the Supreme Court, it was argued that the decision of the Court will bind the parties and it cannot regulate those who are not parties before the Court. The plea was rejected by Supreme Court observing as below.
A writ or an order in the nature of mandamus has always been understood to mean a command issuing from the Court, competent to do the same, to a public servant amongst others, to perform a duty attaching to the office, failure to perform which leads to the initiation of action. In this case, the, petitioners-appellants assert that the mandamus in their case was issued by the High Court commanding the authority to desist or forbear from enforcing the provisions of an Act which was not validly enacted. In other words, a writ of mandamus was predicated upon the view that the High Court took that the 1979 Act was Constitutionally invalid. Consequently the Court directed the authorities under the said Act to forbear from enforcing the provisions of the Act qua the petitioners. The Act was subsequently declared Constitutionally valid by this Court. The Act, therefore, was under an eclipse, for a short duration; but with the declaration of the law by this Court, the temporary shadow cast on it by the mandamus disappeared and the Act revived with its full vigour. The Constitutional invalidity held by the High Court having been removed by the Judgment Court. If the law so declared invalid is held Constitutionally valid, effective and binding by the Supreme Court, the mandamus forbearing the authorities from enforcing its provisions would become ineffective and the authorities cannot be compelled to perform a negative duty. The declaration of the law is binding on everyone and it is, therefore, futile to contend that the mandamus would survive in favour of those parties against whom appeals were not filed.
(emphasis supplied)
16. In A.S. Gauraya v. S.N. Thakur : 1986CriLJ1074 , it was held that the decision of Supreme Court applies to all pending proceedings with retrospective effect. It was laid down as under..There is nothing like any prospective operation alone of the law laid down by this Court. The law laid down by this Court applies to all pending proceedings. If the Sessions Judge had expressed his helplessness because of the earlier order of the High Court binding on him and had allowed the revision on that ground, we could have understood the reasoning behind it. He got rid of the effect of this Court's judgment by observing that a decision by this Court cannot be treated as 'a sort of legislation by Parliament' and thus overlooked the binding nature of the law declared by this Court, mandating under Article 141, every Court subordinate to this Court to accept it. The High Court could have, if it had examined the matter, corrected the error into which the Sessions Judge fell.
17. Therefore, the submission of learned Counsel for petitioner that the Act is rendered invalid only from the date of Judgment of Supreme Court and the appointments made should be proceeded with in accordance with Rationalisation Act and Rationalisation Rules cannot be accepted. Such a plea would result in directing second respondent to implement an Act which is ultra vires the Constitution. It would be arbitrary and violative of Article 14 of Constitution of India if a person is subjected to law which is not valid and which is specifically declared to be invalid by Constitutional Court. Admittedly, third respondent secured more marks in the written test, skill test and interview, and her appointment is unassailable.
The writ petition is devoid of any merit and is accordingly dismissed with costs.