ORDER
Ghulam Mohammed, J.
1. This Writ Petition has been filed challenging the paragraph 2 of the Annexure II appended to G.O.Ms. No. 570, dated 31-12-1997, and para 1 of Annexure-II of Notification No. 31 of 2007 dated 27-12-2007 to the extent that' the Number of candidates to be admitted to the written examination (Conventional Type) would be 50 times to the total number of vacancies available at the material time irrespective of communities', as illegal, unjust, and violative of Articles 14, 16(4), 21 and 335 of the Constitution of India with particular reference to Regulation 14-A and also contrary to Rule 4 of the APPSC Rules, and to set aside the order of the Andhra Pradesh Administrative Tribunal, Hyderabad in O.A. No. 4716 of 2008 dated 4-7-2008.
2. The 2nd respondent-Andhra Pradesh Public Service Commission, Hyderabad (for short 'APPSC'), vide notification No. 31 of 2007 dated 27-12-2007 notified 196 vacancies in various cadres of Group-I services and invited applications from the eligible candidates to participate in the selection process, in pursuance whereof, the petitioners herein, along with other aspirants numbering 1,68,000 have applied for the posts in Group-I Services. The APPSC conducted the screening test on 20-4-2008, and published the result of the screening test on 26-5-2008 selecting 9,800 candidates to the Written Examination (Mains) out of 1,68,000 candidates who participated in the screening test, stating that it has selected the candidates for the Written Examination (Mains) in the ratio of 1:50 in the order of merit, without reference to the category/community vis-a-vis the earmarked reservation to their particular community.
3. According to the petitioners, the respondents have selected the candidates for main examination in the order of merit in the ratio of 1:50, and did not take steps to see that the candidates of reserved categories to come to the level of zone of consideration in selecting the candidates in the ratio of 1:50, on the premise that the Government issued G.O.Ms. No. 570 dated 31-12-1997 defining the programme of selection and scheme of examination of Group-I services and that Paragraph 2 of the said G.O. mentions that the number of candidates to be admitted to the written examination (Mains) would be fifty times to the vacancies available at the material time irrespective of communities.
4. The petitioners herein, therefore, approached the Tribunal in O.A. No. 4716 of 2008 challenging the action of the respondents in selecting only 9800 candidates from 1,68,000 applicants, in the ratio of 1:50 for Mains without reference to the reservations and excluding the candidates from the zone of consideration.
5. The Tribunal by its impugned judgment dismissed the O.A. following the judgment of the Division Bench of this Court in S. Jaffer Saheb v. State of Andhra Pradesh 1985 (2) APLJ 380 (D.B), and unreported judgment of another Division Bench of this Court in Writ Petition No. 24247 of 2004 dated 31-12-2004. Hence, this Writ Petition.
6. Sri S. Ramachander Rao, learned Senior Counsel appearing on behalf of the Counsel for the petitioners vehemently contended that the principle of reservation has been given a go-by, by the respondents, by eliminating certain reserved quota candidates from the zone of consideration at the threshold under the guise of screening test and the authorities restricted their choice only to 9800 candidates out of 1,68,000 applicants. It is further contended that screening test is not part of selection process, and that selection process consists of written examination and interview, in selection process equality cannot be denied to the reserved candidates as no rational criteria (in pursuance of the constitutional scheme) was adopted by the APPSC in eliminating the SC, ST, BC, women, and other reserved candidates including physically handicapped persons, from the zone of consideration itself on the premise that they have not qualified in the screening test.
7. Learned Senior Counsel relying on the constitutional provisions under Article 16(4) of the Constitution of India, Rule 4 of the APPSC Rules and Rules 22, 22(A) of the A.P. State and Subordinate Service Rules, 1996, further contends that the authorities have to follow the rule of reservation and that against each vacancy 50 persons have to be allowed to compete in each category and community. Learned Senior Counsel further contends that neither Rule 4 of the APPSC Rules, nor the G.O.Ms. No. 570 were challenged in the earlier judgments of this Court, which were relied upon by the Tribunal in its impugned order, and the said judgments have to be treated as per incuriam. Learned Senior Counsel further submits for 2 posts of ST (W), instead of selecting 100 candidates as per the ratio of 1:50, the respondents have selected only 21 candidates. Further, the APPSC has selected only 924 women candidates instead of selecting 2850 candidates as per 33.3% reservation by virtue of Rule 22-A of the A.P. State and Subordinate Service Rules, 1996. It is further submitted that preliminary examination is nothing but a screening test and the marks secured therein will not be reckoned for selection process and that even according to the APPSC rule that for every one post 50 candidates shall be allowed to sit for mains was never fulfilled. Learned Senior Counsel further submits preliminary test consists of general studies which includes English and mental ability, and that candidate who studied in the urban areas will have an opportunity to compete well in the general studies including English language and that every citizen has a right of equality of opportunity for public employment subject to general eligibility criteria.
8. In support of his contentions the learned Senior Counsel has relied on the judgments reported in Indra Sawhney v. Union of India 1992 Suppl. (3) SCC 217, State of U.P. v. Dr Dina Nath Shukla (1997) 9 SCC 633, Superintending Engineer, Public Health v. Kuldeep Singh : [1997]1SCR454 .
9. Per contra, learned Advocate General appearing for the respondents contended that when large number of candidates apply for 196 Group I posts, following the dicta of the Division Bench of this Court in Jaffer Saheb's case and unreported judgment of this Court in W.P. No. 24247 of 2004 dated 31-12-2004, the APPSC conducted the screening test, and that reservation at the stage of preliminary entry is impermissible. Learned Advocate General further contended that ratio of 1:50 has been maintained in each vacancy irrespective of community by subjecting the candidates to screening test and only top rank candidates have been selected for the earmarked posts. Further, the petitioners cannot approbate and reprobate having participated in the selection process and found to be unsuccessful in the preliminary test. In support of his contention, following judgments were relied on.
10. Swaran Lata v. Union of India : (1979)ILLJ273SC , University of Cochin v. N.S. Kanjoonjamma : (1997)IILLJ228SC , K.H. Siraj v. High Court of Kerala : AIR2006SC2339 , Om Prakash Shukla v. Akhilesh Kumar Shukla 1986(Suppl) SCC 285, Madan Lal v. State of J & K : [1995]1SCR908 , Government of A.P. v. P. Dilip Kumar : [1993]1SCR435 , M.P. Public Service Comission v. Navnit Kumar Potdar : (1995)ILLJ180SC , Union of India v. T. Sundararaman : (1997)IILLJ368SC , Om Prakash v. Akhilesh Kumar : [1986]1SCR855 . Pitta Naven Kumar v. Raja Narasaiah Zangiti : (2006)10SCC261 .
11. In Swaran Lata's case (5 supra), it was held by the Apex Court as follows:
(38) While it is not disputed that the power to regulate matters relating to services under the Union of India and under the various States specified in the First Schedule to the Constitution is an exclusive function of the Union and the States under Entry 70, List I and Entry 41, List II of Seventh Schedule read with Article 309, and normally, therefore, it is the exclusive power of the Union and the States to deal with their services either in exercise of their Legislative functions or rule-making powers, or in the absence of any law or rules, in exercise of their executive power under Article 73 and Article 162 of the Constitution, which is coextensive with their legislative powers to regulate recruitment and conditions of service, nevertheless it is strenuously urged that this power of the Union and of the States which embraces within itself the power to regulate the mode of recruitment of services must yield to the supplemental, incidental or consequential directions issued by the central government in relation to the setting up of services in a newly formed State under a law made by the Parliament relatable to Article 3 of the Constitution, in the context of reorganisation of States. To put it more precisely, it is argued that the newly formed State is completely divested of its power to deal with its services, in Union of India v. P.K. Roy this Court touched upon the subject, but expressed no final opinion since the question did not directly arise...
It is not obligatory under the proviso to Article 309 to make rules of recruitment etc. before a service can be constituted, or a post created or filled. The State government has executive power in relation to all matters in respect to which the Legislature of the State has power to make laws. It follows from this that the State government will have executive powers in respect of List II, Entry 41 of the Seventh Schedule: 'state Public Services': B.N. Nagarajan v. State of Mysore. There is nothing in the terms of Article 309 of the Constitution which abridges the power of the Executive to act under Article 162 of the Constitution without a law. The same view has been taken by this court in T. Cajee v. V. Jormanik Siem and Sant Ram Sharma v. State of Rajasthan. The same principle underlies Article 73 of the Constitution in relation to the executive power of the Union.
12. In Kanjoonjamma's case (6 supra), it was held by the Apex Court that when the University (appellant therein) had made general rules of reservation applicable, there is no necessity to make a special reservation rule for special recruitment and that omission to mention in the advertisement that it was a special recruitment is of no consequence.
13. In K.H. Sirafs case (7 Supra), the High Court of Kerala invited applications for the appointment to the post of Munsif Magistrate in the Kerala Judicial Service. Out of more than 1800 candidates who had applied, 1291 applications were found valid.118 candidates passed the written examination. Out of the said candidates, 88 passed the interview and select list was prepared from amongst these 88 candidates. The appellants therein were not selected as they had not secured the prescribed minimum marks in the interview. The appellants challenged the said selection. They inter alia contended that in the absence of specific legislative mandate under Rule 7(i) of the Kerala Judicial Service Rules, 1991 prescribing cut-off marks in oral examination, fixing of separate minimum cutoff marks in the interview for further elimination of candidates after a comprehensive written test touching the required subjects in details was violative of the statute. The Supreme Court dismissing the appeals held as follows:.Thus, apart from the amplitude of the power under Rule 7 it is clearly open for the High Court to prescribe benchmarks for the written test and oral test in order to achieve the purpose of getting the best available talent. There is nothing in the Rules barring such a procedure from being adopted. It may also be mentioned that executive instructions can always supplement the Rules which may not deal with every aspect of a matter. Even assuming that Rule 7 did not prescribe any particular minimum, it was open to the High Court to supplement the rule with a view to implement them by prescribing relevant standards in the advertisement for selection.
14. In Om Prakash Shukla's case (8 supra), it was held by the Apex Court as follows:.Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realized that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination.
15. In Navnit Kumar Potdar's case (11 supra), it was held by the Apex Court that where the selection is to be made solely on the basis of interview, it is necessary to fix limit of candidates to be called for interview on some rational objection basis. In P. Dilip Kumar's case (10 supra), the Apex Court held that it is always open to the recruiting agency to screen the candidates due for consideration at the threshold of the process of selection by prescribing higher eligibility qualification so that the field of selection can be narrowed down with the ultimate objective of promoting candidates with the higher qualifications to enter the zone of consideration.
16. In T. Sundararaman's case (12 supra) three posts of Assistant Professor, Medicine were advertised, specifically mentioning that short listing would be made if applicants are many. The Apex Court considering its earlier judgment in P. Dilip Kumar's case (10 supra), held that short listing done on the basis of higher experience is not improper.
17. In Pitta Naveen Kumar's case (14 supra), the Apex Court held that a candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution has only a right to be considered therefore. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise.
18. We have given our anxious consideration to the respective submissions made by the learned Counsel on either side and perused the impugned order passed in O.A. No. 4716 of 2008 by the Tribunal and other material made available on record.
19. The short point that falls for consideration in this writ petition is when the APPSC conducts preliminary examination for shortlisting the candidates after declaring the results of the screening test, whether the candidates to be allowed for the main examination would be at the rate of 1:50 against each vacancy in each group and each category or at the rate of 1:50 irrespective of the communities'?
20. Before going into the merits of the case, it is apt to extract para 2 of the Annexure II appended to G.O.Ms. No. 570 dated 31-12-1997.
2. There will be a Screening Test (Objective Type) comprising General Studies and mental ability. This test is meant for short listing the number of candidates to be admitted to the written examination i.e., consisting of:
A. Compulsory Subjects:
(1) Essay (2) General English (3) General Studies and
B. Optional Subjects (Two Optionals):
First Optional Paper I & II (Items 4 and 7). Second Optional Paper I & II (Items 6 &7). The marks secured in the screening test will not be counted for ranking. The number of candidates to be admitted to the written examination (Conventional Type) would be 50 (fifty) time to the total number of vacancies available at material time irrespective of communities.
(emphasis supplied)
Para 1 of the Annexure II appended to the notification No. 31 of 2007 dated 27-12-2007 reads as follows:
1. There will be a Screening Test (Objective Type) comprising General Studies and mental ability. This test is meant for short listing the number of candidates to be admitted to the written (Conventional Type) examination i.e., consisting of six compulsory papers. The number of candidates to be admitted to the Written Examination (conventional type) would be 50 times to the vacancies available at material time irrespective of communities.
21. It is well settled proposition that conduct of preliminary test/screening test/eliminatory test is for shortlisting the candidates and such procedure is supported by many judgments of the Apex Court. The real grievance of the petitioners seems to be that instead of permitting the candidates to sit for the written examination at the rate of 1:50 against each group and category of vacancy, they have adopted a method of calculating at the rate of 1:50 from among the top ranks in the screening test, and thus eliminated many of the candidates. Even a perusal of the statement of ratio placed before us by the learned Standing Counsel for the APPSC, shows that at serial No. 3 (BC-A), Sl. No.5 (BC-B), and Sl. No. 9 (BC-D), the ratio is more than 1 : 50, whereas in respect of others it is less than 50. In case of ST (Women), it is 1:11. Thus, the contention of the learned Senior Counsel is that when two vacancies are available atleast 100 candidates must be allowed from the category of ST (Women) to write the main examinations, then only it amounts to giving equal opportunity of competing in the competitive examination under the selection process.
22. The tables placed before us by the learned Senior Counsel for the petitioners reads thus:
TABLE-1
STATEMENT SHOWING THE RATION
---------------------------------------------------------------------------------S.NO. CATEGORY VACANCIES CANDIDATES RATIO---------------------------------------------------------------------------------1. OC 69 3173 46---------------------------------------------------------------------------------2. OC(W) 31 423 14---------------------------------------------------------------------------------3. BC-A 9 799 89---------------------------------------------------------------------------------4. BC-A(W) 4 63 16---------------------------------------------------------------------------------5. BC-B 12 1772 148---------------------------------------------------------------------------------6. BC-B(W) 6 152 25---------------------------------------------------------------------------------7. BC-C 3 112 37---------------------------------------------------------------------------------8. BC-C(W) 0 14 ----------------------------------------------------------------------------------9. BC-D 10 1579 158---------------------------------------------------------------------------------10. BC-D(W) 4 112 28---------------------------------------------------------------------------------11. BC-E 5 169 34---------------------------------------------------------------------------------12. BC-E(W) 1 14 14---------------------------------------------------------------------------------13. SC 22 1062 48---------------------------------------------------------------------------------14. SC(W) 9 125 14---------------------------------------------------------------------------------15. ST 9 210 23---------------------------------------------------------------------------------16. ST(W) 2 21 11---------------------------------------------------------------------------------TOTAL: 196 9800 50---------------------------------------------------------------------------------TABLE-2
CATEGORY-WISE DATA OF THE CANDIDATES PERMITTED
TO APPEAR FOR MAINS AS PER THE APPSC--------------------------------------------------------------------------------------------------CATE- POSTS C ANDIDATES TO BE ACTUAL NUMBER OFGORY PERMITTED FOR CANDIDATES PERMITTEDMAINS AS PER TO APPEAR FOR MAINS1: 50 RATIO AND THEIR RATIOMEN WOMEN TOTAL MEN WOMEN TOTAL MEN RATIO WOMEN RATIO---------------------------------------------------------------------------------------------------OC 64 30 94 3200 1500 4700 3173 1:46 423 1:14---------------------------------------------------------------------------------------------------BC(A) 09 04 13 450 200 650 799 1:89 63 1:16---------------------------------------------------------------------------------------------------BC(B) 12 06 18 600 300 900 1772 1:148 152 1:25---------------------------------------------------------------------------------------------------BC(C) 03 00 03 150 000 150 112 1:37 14 0:4---------------------------------------------------------------------------------------------------BC(D) 10 04 14 500 200 700 1579 1:158 112 1:28---------------------------------------------------------------------------------------------------BC(E) 05 01 06 250 050 300 169 1:34 14 1:14---------------------------------------------------------------------------------------------------SC 22 09 31 1100 450 1550 1062 1:48 125 1:14---------------------------------------------------------------------------------------------------ST 09 02 11 450 100 550 210 1:23 21 1:11---------------------------------------------------------------------------------------------------H.H. 03 00 03 150 000 150 - - - ----------------------------------------------------------------------------------------------------P.H. 02 01 03 100 050 150 - - - ----------------------------------------------------------------------------------------------------TOTAL 139 57 196 6950 2850 8876 9249800---------------------------------------------------------------------------------------------------
23. The Apex Court in Indra Sawhney's case (2 supra) has held as follows:
(429) Equality postulates not merely legal equality but also real equality. The equality of opportunity has to be distinguished from the equality of results. The various provisions of our Constitution and particularly those of Articles 38, 46, 335, 338 and 340 together with the Preamble, show that the right to equality enshrined in our Constitution is not merely a formal right or a vacuous declaration. It. is a positive right, and the State is under an obligation to undertake measures to make it real and effectual. A mere formal declaration of the right would not make unequals equal. To enable all to compete with each other on equal plane, it is necessary to take positive measures to equip the disadvantaged and the handicapped to bring them to the level of the fortunate advantaged. Articles 14 and 16(1) no doubt would by them- selves permit such positive measures in favour of the disadvantaged to make real the equality guaranteed by them. However, as pointed out by Dr Ambedkar while replying to the debate on the provision in the Constituent Assembly, it became necessary to incorporate Clause (4) in Article 16 at the insistence of the members of the Assembly and to allay all apprehensions in that behalf. Thus, what was otherwise clear in Clause (1) where the expression 'equality of opportunity' is not used in a formal but in a positive sense, was made explicit in Clause (4) so that there was no mistake in understanding either the real import of the 'right to equality' enshrined in the Constitution or the intentions of the Constitution-framers in that behalf. As Dr Ambedkar has stated in the same reply, the purpose of the Clause (4) was to emphasise that 'there shall be reservations in favour of certain communities which have not so far had a 'proper look-in' into so to say the administration.
24. In Jaffer Saheb's case (1 supra), the candidates who secured 95 marks from the open competition list were not admitted to the main examination, while the candidates belonging to the backward class, scheduled caste and scheduled tribe who secured 85 marks and less marks were admitted to the main examination. The petitioners therein questioned the above action of the APPSC in admitting the candidates who secured 85 marks and less for main examination and denying admission to the petitioners who secured 95 marks. Considering those situations it was held by the Division Bench of this Court as follows:.in the present case neither the Rules nor the scheme of the examination contemplates nor the constitutional right permits denial of equal opportunity to sit for the main examination to the candidates who have taken the preliminary examination. Different qualifying marks for calling for oral test and for selection alone are prescribed by the scheme. No such separate qualifying marks are prescribed - it cannot be prescribed under any valid law - for admission to the main examination. Therefore, admission to the main examination should only be on the ranking secured in the preliminary examination irrespective of the caste or backwardness of the candidates appearing for the examination because all of them are competing for posts in the open competition also. The procedure adopted by the Service Commission for admission to the main examination is illegal and violative of Articles 14 and 16 of the Constitution. The Service Commission in the present case holds only a weeding out test or an eligibility test and the test is only in the general studies. There is no paper in optional subjects. When a candidate is ineligible or does not come up to a basic standard, no relaxation can be granted.
25. In unreported judgment in WP No. 24247 of 2004 the Division Bench of this Court has held as under:
The contention of the learned Counsel for the petitioner is that at least the ratio of 1:50 should be maintained in respect of each post reserved for community reservation for in such an event, it will enable the reserved candidates to effectively participate in the selection and candidates from out of them would be selected within the reservation category, but this contention though appears to be appealing, cannot be accepted. There cannot be any upper limit. If this has to be taken into consideration, then 1:50 ratio should be considered to be appropriate and reasonable, and inasmuch as it is assured by the APPSC that there will not be any carry forward vacancies, we are not inclined to interfere with the order passed by the Tribunal.
26. The tables above show that there are 57 posts of women and that 2850 candidates were required to be permitted to write the main examinations as per 1:50 ratio, whereas they were restricted to 924 candidates, thus violating the Article 14 and 16 of the Constitution of India and Rule 22 of the A.P. State and Subordinate Service Rules. In respect of Hearing Handicapped persons, though 3 vacancies were earmarked no candidate was selected for the purpose of main examination. May be persons who got more than 80 percent of the marks were selected, but when no qualified marks are fixed, the respondents ought not to have eliminated the candidates simply because they got marks less than 80% or so.
27. As discussed above, in our considered view, the APPSC has not maintained the ratio of 1:50 in all the reserved categories, thereby the meritorious candidates under the reserved categories are tending to lose the chance of appearing for the written examination by negating the policy of reservation and social justice theory. The right to equality of opportunity for employment enshrined in Articles 14 and 16 is indirectly denied by denial of admission to the main examination to these candidates. Further, it is noteworthy that in earlier occasions, either in Jaffer Saheb case (1 supra) or in WP No. 24247 of 2004, rule in G.O.Ms. No. 570, dated 31-12-1997 was not challenged at all.
28. The Supreme Court in Civil Appeal No. 4121 of 2006 and batch dated 14-9-2006 considering various case laws in this regard has held that:.The question, however, remains as to whether the State could reduce the cut-off marks. If the cut-off marks specified by the State is arbitrary, Article 14 would be attracted. The Tribunal did not have any jurisdiction to pass an interim order directing reduction in the cut-off marks. The cutoff mark at 66% was fixed having regard to the ratio of the candidates eligible for sitting at the written examination at 1: 50. An interim order as is well known is issued for a limited purpose. By reason thereof, the Tribunal had no jurisdiction to grant a final relief...
In Union Public Service Commission v. Gaurav Dwivedi and Ors. : [1999]3SCR649 , this Court categorically held that ability that a person who was otherwise entitled to be called for an interview may lose its chance if the others who were not eligible are called for interview.
The Standard was fixed as 1:50. The Commission came to the conclusion having regard to the results published on written examination that 66% (?) should be cut-off mark. It need not have been 66%. If the nature of more candidates was to be taken into consideration, the same mean that the State shall give a go by to principle of selection fixed viz. 1: 50. If the submission of the Commission and consequently; the ( ) to be accepted that the ratio should be 1 : 50, the same could not have been reduced to 10:90. A violation of that rule would, in our opinion, be arbitrary.
29. The bone of contention of the learned senior Counsel appearing for the petitioners is that paragraph-2 of Annexure-II appended to G.O.Ms. No. 570, dated 31-12-1997 is contrary to the spirit of social justice as contemplated under the Indian Constitution. The words 'irrespective of communities' are contrary to the spirit of Articles 14, 15(2) and 16(1) of the Constitution of India, which read as under:
14. Right to Equality: The State shall to deny to any person equality before the law or the equal protection of the laws within the territory of India.
15. Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth
(1)....
(2)....
(3) Nothing in this Article shall prevent the State from making any special provision for women and children.
(4) Nothing in this Article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.]
(5)....
16. Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2)....
(3)....
(4)....
(5)....
335. Claims of Scheduled Castes and Scheduled Tribes to services and posts- The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State:
Provided that nothing in this Article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.
A cumulative reading of the above Articles would command that 1:50 candidates should be permitted against each vacancy notified (in group/category). While drawing our attention to Table-1 above, learned senior Counsel pointed out that even in case of OC candidates (those who do not fit into the teeth of reservation) the ratio was only 1:46 and OC women, the ratio was 1:14. Likewise, in no group or category, the criterion of 1:50 was satisfied. Further, it is surprising to notice that in the category of BC-A at the ratio of 1: 89, BC-B 1:148, BC-D 1:158 candidates were sought to be permitted to write the main examination, since the last candidate among them secured not less than 80 marks in the eligibility test. This itself would indicate that in one category/group 148 candidates were permitted to write examination against one vacancy, whereas in other cases, the least ratio was 1:11 against the required ratio of 1:50. Thus, the competition is drastically cut-short in case of SC women, ST-women and BC-E women and also OC-women. It is not the case of the APPSC that those who have got 60 and above or 50 and above marks are not available among these categories nor it is their case that any cutoff mark/bench mark was fixed for the purpose of declaring the eligibility criteria for permitting to sit for the main examination. Thus, here itself, the equal opportunity to compete 50 candidates against each vacancy in each group/category is violated.
30. It is also not the case of the APPSC that any minimum marks were fixed in the category of SC,ST/BC etc. For example, in a case where 45% marks were fixed in case of SCs and 40% minimum marks were fixed in case of STs, those who have got more than 35% or 45% marks are only eligible for permitting them to write the main examination - whether they are 50 in number or 40 in number or they could have the toppers among 50 of the SCs and toppers among 50 of the STs respectively. In this case, such a procedure was not adopted; in the result, all those who secured 80 and above were permitted to compete stating that those who got 80 and above are 9800 and that satisfies the ratio of 1:50 'irrespective of communities'. Here, in this case, it is demonstrable that in BC-A, BC-B, BC-D categories more number of candidates than required got eligibility/qualified for writing the main examination.
31. We respectfully agree with the judgment relied upon in Jaffer Saheb's case (1 supra) as well as the judgment of the Division Bench rendered in Writ Petition No. 24247 of 2004. But, the fact remains that the issue of legality of the words 'irrespective of communities' was never taken into consideration. The rule, as available, was interpreted in the facts and circumstances of those cases. Therefore, they have no application to the present case nor they come in our way in examining the present issue as to the legality and validity of the words 'irrespective of communities'.
32. This being only a screening/elimination test, the question of merit does not arise. Against each vacancy 1:50 must be taken into consideration for the purpose of permitting them to appear for the written examination. Otherwise, it amounts to selection of the candidates only those who have secured 80 and above marks. The selection process begins right from the stage of writing the main examination and not before that. Equal opportunity needs to be given at this stage. Respondents cannot wash off their hands saying that they have given equal opportunity to compete for the purpose of eligibility/screening/elimination test. Even among SC/ST vacancies, equal number of candidates should be permitted to write the main examination. May be, it can be well said that by allowing equal number of candidates against each category, the last person in a given case in SC category, who gets least marks, is also allowed to compete for the OC vacancy. That could be so. But, in a reservation system like this, such inconveniences cannot be avoided. It is not the case of the respondents that the candidates in all the categories those who could not secure 80 marks are allowed, it amounts to lowering the standards for the purpose compensatory preference.
33. In fact, as stated by Sri S. Ramachander Rao, learned senior Counsel, the elimination process is not a selection process. This is also admitted by APPSC. The selection process starts from writing the main examination and further interview etc. Therefore, from the figures, as seen above, in each group/category equal number of candidates were not permitted to appear for mains. Thus, equal opportunity to compete was denied.
34. Further, as seen from Table-2, against 'hearing handicapped and physically handicapped' no candidate has become eligible for writing the main examination, as the cut-off marks were taken as 80. Thus, practically, the procedure adopted by APPSC amounts that it expected of the candidates belonging to reserved categories, including SC/ST, women, physically handicapped and hearing handicapped to compete with the persons in the OC category. It is an admitted fact that in the OC category as well as in other categories, the last mark obtained is 80. Thus, in a way, the cream of the SC/ST and BCs were permitted to compete with the last ranker in OC category. Thus, there is a perfect elimination of the SC/ST and even in case of OC (women), BC-women, SC-women and ST-women to compete at 1:50 against the vacancies meant for that category.
35. In a given case after the written examination is over, SC/ST candidates, who are 11 in number may qualify or may not qualify, if only few numbers are taken. Of course, in a given case, they may get qualified to be fitted in the OC category; thus making the reservation meant for STs otiose. Take an illustration that if only 10 vacancies are notified for different categories and in the screening test, all the toppers at the ratio of 1:50 'irrespective of communities' have come from only B.C.'D', practically it amounts to reserving all the vacancies only for BC-D candidates and others, including OCs, are eliminated from competition. This can happen vice versa also. Thus, practically, the screening test has become a test of merit, if it is followed in the fashion in which it is done by the APPSC.
36. This is not an unusual phenomenon and this will occur every year. Therefore, this could have been taken seriously by the APPSC and could have removed the words irrespective of communities'. They could have set 1:50 ratio in respect of each communal group. The equality postulates not merely legal equality, but also real equality. The equality of opportunity has to be distinguished from the equality of results as is happened in this case. The equality enshrined in our constitution is not merely a formal right or a vacuous declaration. It is a positive right and the State is under an obligation to undertake measures to make it real and effectual. The preliminary test is a mere formal declaration of right and this should not make the unequals equal. As rightly pointed out by the learned senior Counsel appearing for the petitioners, the procedure adopted by the APPSC amounts to treating the unequals as equals at the threshold. That apart, in equating unequals, in A.P.S.K. Sangh (Rly.) v. Union of India : (1981)ILLJ209SC , it was held by the Apex Court thus:.The fundamental right of equality of opportunity has to be read as justifying the categorization of SC & STs separately for the purpose of 'adequate representation' in the services under the State. The object is constitutionally sanctioned in terms, as Articles 12, 16(4) and 46 specificate. The classification is just and reasonable. The court may, however, have to test whether the means used to reach the end are reasonable and do not outturn the purposes of the classification.
37. The case on hand is a glaring example of where the means used to reach the end are not reasonable and do outturn the purpose of classification. Once the candidates, who got more than 80 marks, are allowed to sit for the main examination, the purpose of Article 16(4) is not given effect to. In this case, further, the persons from each category were denied equal opportunity to participate in the written examination; thus denying the equal opportunity in the very same class/group/category and equals are treated differently without any reasonable basis. We are of the view that the words 'irrespective of communities' are liable to be declared as arbitrary, irrational and illegal, since there is no object sought to be achieved, as, as per the constitutional spirit and social justice if 1:50 is not allowed, it amounts that all the categories were not given equal opportunity, leave alone the reserved categories. APPSC could have identified 50 top rankers in each category against each vacancy and that could have perfectly satisfied the criterion of 1:50 and also the dicta of Article 13 i.e. equal opportunity in public employment as enunciated under the Indian Constitution.
38. To conclude allowing persons @ 1:50 against each vacancy in each group/cadre would satisfy the spirit of Articles 14, 16(1) and 16(4) of the Constitution and the theory of social justice and equality in competition for compensatory reservations. Since there was no challenge to the rule, this aspect had not come up for consideration in the earlier judgments and thus, they need not be discussed in detail. Further, the contention of the learned Advocate General that the petitioners are not entitled to maintain the Writ Petition, since they were aware of this condition even before appearing for the screening test and, therefore, the conduct of the petitioners amounts to approbation and reprobation, cannot be accepted, in view of the fact that the very rule, particularly the words 'irrespective of communities' are contrary to the constitutional provisions and the spirit of social justice.
39. For all the above reasons, we are of the considered opinion that paragraph-2 of Annexure-II of G.O.Ms. No. 570, dated 31-12-1997 insofar as it says 'irrespective of communities' is liable to be declared as irrational and no nexus to the object sought to be achieved. Therefore, the said words 'irrespective of communities' are set aside and the impugned Order of the Tribunal is also set aside. However, if the petitioners fall within the ratio of 1:50 against each vacancy in each group/category, as the case may be, they alone shall be allowed to appear for the main examination to be held on 7-8-2008 or on any other date. Accordingly the writ petition is allowed. No order as to costs.