REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2244  OF 2009 [Arising out of SLP (Civil) No. 18308 of 2008]

A.P. Public Service Commission …Appellant

Versus

Baloji Badhavath & Ors. …Respondents

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Andhra Pradesh Public Service Commission is before us aggrieved by

and dissatisfied with a judgment and order dated 23.07.2008 passed by a

Division  Bench of  the  Andhra  Pradesh  High  Court  in  Writ  Petition  No.

16029 of 2008.

3. The Government of Andhra Pradesh used to issue orders laying down

norms to be adopted for filling up of vacancies in Group – I services in the

State comprising of Deputy Collectors, Commercial Tax Officers, Assistant

Prohibition and Excise Superintendents, Assistant Commissioner of Labour,

Deputy  Superintendent  of  Police  Category-2,  Divisional  Fire  Officers,

District Registrars, Assistant Audit Officer and Assistant Treasury Officer/

Assistant  Accounts  Officer.   The  selection  process  takes  place  in  two

phases;  the  first  being  holding  of  an  examination  for  the  purpose  of

shortlisting  of  the  candidates  and  the  second being  holding  of  the  main

examination followed by interview.   

4. Both for preliminary examination as also the main examination, two

criteria  used to  be  adopted;  one  for  the  general  category candidates  and

other for the reserved category candidates.

5. Validity  of  the  said  procedure  came up for  consideration  before  a

Division Bench of the Andhra Pradesh High Court as far back in the year

1984 in  S. Jafeer Saheb v.  State of Andhra Pradesh [1985 (2) APLJ 380].

Indisputably, a similar question came up for consideration again in G. Raju

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v.  Government of  A.P. rep.  by its  Secretary [Writ  Petition  No. 24247 of

2004 decided on 31.12.2004]

In  S. Jafeer Saheb (supra), the contention of the State was that the

reservation  of  posts  used  to  be  made while  admitting  the  candidates  for

examination itself and not in the final selection in the ratio of 1:15.  The

question which, thus, posed, was as to whether admission of candidates for

the  main  examination  by  applying  compensatory  preference  even  at  the

stage of admission in the main examination is violative of Articles 14 and

16 of the Constitution of India.  Taking note of the provisions contained in

Articles 14, 16 and 335 of the Constitution of India, the High Court held:

“11. The purpose of holding a screening test is to ensure  the  basic  standard  of  eligibility  of  the candidates and even at the stage of admission to the  main  examination  the  rule  of  reservation  of posts  cannot  be  applied.   Reservation  for applicants is not permissible under Art. 16(4).

12. The learned Advocate-General submits that if reservation rule is not followed even at the stage of admitting candidates for the main examination, a reserved vacancy is likely to remain unfilled.  It is nobody’s case that as many candidates as there are reserved vacancies have not been qualified for the  main  examination.   Is  there  any  rule  of relaxation  based on reservation for a pass in the H.S.C. Examination or  Intermediate  Examination or B.A. Examination?  There can be no relaxation

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or  waiver  of  a  basic  standard  of  performance. There can be no compromise with the maintenance of  administrative  efficiency  which  is  barred  by Art. 335 of the Constitution.”

It was furthermore held:

“14. Time is now ripe for Courts to lay down the limits to the lowering of standards for the purpose of  compensatory  preference.   The  intensity  of compensatory preference cannot be at the expense of  even-handedness  and  merit  and  cannot proliferate to such an extent as to prove fatal to the basic  proficiency  and  efficiency.   The  intensity must  vary  depending  on  the  nature  of  the compensatory  discrimination  whether  it  is primarily  for  individual  benefit  or  whether  the quality  of  public  service  is  directly  affected. Krishna  Iyer,  J.,  observed  in  State  of  Kerala  v. N.M. Thomas that “to relax basic qualification is to  compromise with  the  minimum administrative efficiency and is presumably barred by Art. 335”. Lowering  of  standards  for  the  purpose  of compensatory  discrimination  is  limited  to competing  commitments  to  efficient administration.

Public interest demands concern for quality and prohibits  waiver  or  abandonment  of  quality. In Janki Prasad v. State of Jammu & Kashmir, the Supreme  Court  observed  that  the  setting  of absurdly low minimal scores made it a “travesty of selection”.

*** *** ***

16…When  a  candidate  is  ineligible  or  does  not come up to a basic standard, no relaxation can be

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granted.  As already pointed out such concession of preference based on reservation is not granted for  a  pass  in  the  H.S.C.  Examination  or Intermediate  Examinat6ion  or  BA  Degree Examination, because they are eligibility test and not proficiency test.”

6. Indisputably, pursuant to or in furtherance of the said judgment of the

High  Court  dated  28.12.1984,  the  State  of  Andhra  Pradesh  issued  fresh

G.O.Ms. No. 570 dated 31.12.1997, providing that the candidates who had

applied for Group – I services would be shortlisted based on a preliminary

examination  (Screening Test)  in  the ratio  of  1:50  to  the total  number  of

vacancies  available  at  the  material  time  irrespective  of  community,  the

relevant portions whereof read as under:

“…The number of candidates to be admitted to the Written examination (Convention Type) would be 50 (fifty) times to  the total  number of  vacancies available  at  material  time  irrespective  of communities.

3. The  papers  except  paper  2,  i.e.,  General English may be answered in English or Telugu or Urdu  chosen  by  the  candidates.   However,  a candidate  is  not  permitted  to  write  part  of  the paper in English and part of it in Telugu.

4. The  paper  on  General  English  is  a qualifying  one  and  the  standard  of  this  paper  is

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that of S.S.C.  The minimum qualifying marks in this paper are 40% for O.Cs. 35% for B.Cs. and 30% for  SC/STs and P.H.  These  marks  are  not counted for ranking.

5. In the event of the S.C. and S.T. candidates not  coming  up  for  selection  with  the  existing minimum  prescribed  for  the  selection  in  the competitive  examination  conducted  by  the commission, their selection shall be considered on the  basis  of  rank  with  reference  to  their performance in  the written  and Oral  competitive examination.”

7. Indisputably,  when  in  terms  of  the  said  GOMs,  a  notification  in

Advertisement No. 21 of 2003 calling applications for Group – I Services

was issued in the year 2003, another writ application came to be filed by G.

Raju and seven others questioning the legality thereof.   

The  Andhra  Pradesh  High  Court  by  a  judgment  an  order  dated

31.12.2004 passed in Writ petition No. 24247 of 2004, opined:

“13. The  contention  of  the  learned  counsel  for the  petitioners  is  that  at  least  the  ratio  of  1:50 should  be  maintained  in  respect  of  each  post reserved  for  community  reservation,  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

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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 A.P.P.S.C. that there will not be any carry forward vacancies, we are not inclined to interfere with the order passed by the Tribunal.”

However,  in  that  writ  petition,  the  validity  of  GOMs  dated

31.12.1997 was not in question.

8. A  notification  bearing  No.  31  of  2007  was  issued  for  Group  –  I

Services  Direct  Recruitment  (General)  on  27.12.2007  notifying  196

vacancies; inter alia laying down:

“3. Caste  &  Community:  Community Certificate  issued  by  the  competent  authority  in terms of G.O.Ms No. 58, SW(J) Dept., dt: 12/5/97 should be submitted at appropriate time.  As per General  Rules for  State and Subordinate Service Rules, Rule 2(28) Explanation: - No person who professes a religion different from Hinduism shall be  deemed a  member  of  scheduled  caste.   BCs, SCs  &  STs  belonging  to  other  States  are  not entitled  for  reservation,  candidates  belonging  to other  States  shall  pay  the  prescribed  fee  of  Rs. 120/-  (One  hundred  and  Twenty  only)  through I.P.O.   Otherwise  such  applications  will  not  be considered and no correspondence on this will be entertained.

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4. Reservation  for  local  candidates  is  not applicable as per concerned Departmental Special Rules, except Post Code – 8, i.e., AAO in AP State Audit Service.

5. Reservation  and  eligibility  in  terms  of General  Rule  22  &  22-A  of  A.P.  State  and Subordinate Service Rules are applicable.

*** *** ***

10. The Reservation to Women will apply as per General  Rules.   For  P.C.  No.  066,  women candidates are not eligible.”

Relaxation of age was granted for the SC/ST and BCs candidates by

five  years.   The  reserved  categories  of  candidates  were  exempted  from

payment of fees.

9. Pursuant  to  or  in  furtherance  of  the  said  notification,  1,68,000/-

candidates  applied.   A  preliminary  examination  was  held  for  all  the

candidates.  Having regard to the ratio of the number of candidates to be

admitted  for  main  examination  being  1:  50,  9,800  candidates  were

shortlisted to take the main examination.

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10. Respondents  herein  appeared  at  the  said  preliminary  examination

without any demur whatsoever.  They, however, having not been shortlisted

filed an original application before the Andhra Pradesh State Administrative

Tribunal.  The said original application was dismissed.   

11. Aggrieved  by and  dissatisfied  therewith,  they  filed  a  writ  petition

before the Andhra Pradesh High Court which by reason of the impugned

judgment has been allowed.  The Commission was impleaded as a party in

the writ petition.   

The  High  Court,  however,  directed  the  Commission  to  prepare  a

statement  showing the ratio  as  also category-wise data  of  the  candidates

permitted  to  appear  for  the  Main  examination  as  per  the  Commission.

Despite  noticing  the  ratio  laid  down,  in  regard  to  certain  category  of

candidates,  as  for  example,  OC,  BC(C),  BC(E),  women  and  physically

handicapped candidates, in its earlier decisions in S. Jafeer Saheb (supra) as

also in G. Raju (supra), it was held that in the said case as the ratio of the

candidates in respect of those categories fell much short of 1:15 ratio, the

said GOMs dated 31.12.1997 as also the notification dated 27.12.2007 were

held to be ultra vires Articles 14 and 16 of the Constitution of India.

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It was stated that both in  S. Jafeer Saheb (supra) as also in  G. Raju

(supra), the GOMs No. 570 dated 31.12.1997 was not challenged at all.

The  notification  dated  27.12.2007  was  said  to  be  contrary  to  the

principles of natural justice as also Articles 14 and 16 of the Constitution of

India on the following premise:

(i) Non-implementation  of  community-wise  reservation  attracts  the

wrath of Article 16 of the Constitution of India.

(ii) The  right  of  reservation  must  be  recognized  at  all  levels.

Although S. Jafeer Saheb (supra) as also G. Raju (supra) lay down

good law but  as  community – wise  reservation  did  not  fall  for

consideration therein, the said decisions were not binding upon it.

(iii) Non-fixation  of  a cut-off  mark for  each category of  community

would also be violative of Articles 14 and 16 of the Constitution

of India.

12. Mr. L. Nageshwara Rao, learned senior counsel appearing on behalf

of  the  appellant  and  Mr.  R.  Sundaravaradhan,  learned  senior  counsel

appearing on behalf of the respondent – State, would contend:  

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(i) As  Article  16(4)  of  the  Constitution  of  India  provides  for  an

enabling provision, no writ of mandamus could be issued.

(ii) Right of the candidates being only to be considered for selection

in terms of the extant rules, the High Court committed an error in

passing the impugned judgment.

(iii) The impugned judgment would be detrimental to the interests of

the meritorious candidates belonging to the reserved category.

(iv) The writ petitioners - respondents having failed to qualify in the

preliminary  examination,  are  estopped  and  precluded  from

questioning  the  validity  of  GOMs  No.  570  or  the  notification

dated 27.12.2007 issued by the appellant – Commission.

(v) Reservation for women and physically handicapped persons being

an incident of horizontal reservation and not a vertical reservation,

the impugned judgment cannot be sustained.

13. Mr.  P.P.  Rao,  learned  senior  counsel  appearing  on  behalf  of  the

respondents,  however,  while  conceding  that  the  writ  petitioners  –

respondents cannot claim any right of reservation and no writ of mandamus

can be issued, contended:

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(i) As the Constitution contemplates upliftment of weaker sections by

providing a percentage of seats for employment in the State and

having regard to the fact that both clauses (1) and (4) of Article 16

of  the  Constitution  of  India  provide for  valid  classification,  the

impugned judgment should not be interfered with.   

(ii) Judging  of  the  merit  of  the  candidates  having  regard  to  the

provisions of Article 335 of the Constitution of India per se should

not allow the State and the Commission to stop all the candidates

at the first gate and then prevent them from appearing at the main

examination  as  thereby  constitutional  scheme  to  provide

reservation would be frustrated to a great extent.

(iii) The  means  to  achieve  the  constitutional  object  and  the  goals

should  not  be  defeated  by  inserting  procedural  provisions  as  a

result  whereof  what  is  being  given  by one  hand  should  not  be

permitted to be taken away by the other.

(iv) Reservation  made in  favour  of  women,  physically  handicapped,

etc, although pertains to horizontal reservation, the candidates of

the said categories cannot be treated differently.

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(v) A candidate only by appearing in an examination cannot waive his

fundamental or a statutory right.

(vi) The State having provided for reservation in terms of Rules 22 and

22-A of the Andhra Pradesh State and Subordinate Service Rules,

1996 and furthermore,  such a right  having also  been created in

terms of Regulation 14-A of the Andhra Pradesh Public Service

Commission Regulations, 1963, the writ petitioners – respondents

obtained  an  indefeasible  right  for  consideration  of  their

candidature so as to enable them to compete with other candidates

for appointment in the said post which cannot be permitted to be

taken away by reason of the impugned GOMs No. 570 and the

notification dated 27.12.2007.

(vii) The expression “irrespective of communities” used in GOMs No.

570  even  otherwise  cannot  be  read  in  such  a  manner  so  as  to

violate the constitutional  scheme, as reservation is  not  based on

any religion or race, particularly in view of the fact that the makers

of the Constitution of India thought of  a casteless  and classless

society.

(viii) The  High  Court  having  declared  the  GOMs  No.  570  as

unconstitutional  and  the  State  having  not  preferred  any special

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leave  petition  thereagainst,  the  Andhra  Pradesh  Public  Service

Commission cannot be said to have any locus standi to maintain

this appeal.

14. The vacancies which were to be filled up by the State pertained to

Group  –  I  services.   The  State  indisputably  subject  to  the  constitutional

limitations having regard to its power contained in the proviso appended to

Article  309 of  the Constitution  of  India  is  entitled  to  frame rules  laying

down the mode and manner in which vacancies are to be filled up.

15. If  the  State  has  the  legislative  competence  to  frame  rules,

indisputably, it can issue governmental orders in exercise of its power under

Article 162 of the Constitution of India.  It adopted one procedure.  It was

held to be ultra vires by the Andhra Pradesh High Court in S. Jafeer Saheb

(supra).  It attained finality.  The State amended the procedure in the light of

the said decision by GOMs No. 570 dated 31.12.1997.  No new policy was

laid  down  which  can  be  said  to  be  contrary  to  or  inconsistent  with  the

decision of the Andhra Pradesh High Court in  S. Jafeer Saheb (supra).  A

notification  containing  similar  provisions  issued  by  the  Andhra  Pradesh

Public Service Commission in 2003 was questioned.  It may be true that the

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validity  of  the  GOMs itself  was  not  questioned  but  if  the  terms  of  the

notification were held to be unconstitutional, GOMs could have also been

declared as such.

16. The Division Bench of the High Court indisputably was bound by the

said decision.  It, however, proceeded to examine the constitutionality of the

GOMs dated 31.12.1997 and the notification dated 27.12.2007 inter alia on

the premise that the validity of the said GOM and the notification was not

tested on the touchstone of Articles 14 and 16 of the Constitution of India.

17. The Constitution of India lays down provisions both for protective

discrimination  as  also  affirmative  action.   Reservation  of  posts  for  the

disadvantaged class of people as also seats in educational institutions are

provided for by reason of Articles 15 and 16 of the Constitution of India.

Reservation  made  for  the  members  of  the  Scheduled  Castes,  Scheduled

Tribes and other Backward Classes would,  however, is subject  to Article

335 of the Constitution of India.  Concededly, no citizen of India can claim

reservation as a matter of right.  The provisions contained in Articles 15 and

16 of the Constitution of India are merely enabling provisions.  No writ of

or in the nature of mandamus, thus, could be issued. [See C.A. Rajendran v.

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Union of India & Others, (1968) 1 SCR 721 at 731-733, Indra Sawhney and

Others v. Union of India and Others [1992 Supp (3) SCC 217, para 165 to

169, 428 to 432, 741 and 742, Ajit Singh and Others (II) v. State of Punjab

and Others (1999) 7 SCC 209, para 32 to 39, State of Punjab and Others v.

Manjit Singh and Others (2003) 11 SCC 559, para 7 and 12]

18. The  State,  however,  have  made  provisions  for  reservation.

Indisputably, the appellant – Commission has made regulations known as

Andhra Pradesh Public Service Commission Regulations, 1963, Regulation

14-A whereof reads as under:

“It shall  be necessary for the Commission in the matter of recruitment to the posts and services to strictly  adhere  to  wherever  applicable  the provisions contained: (i) in the General Rule 22 and 22-A;”

19. The rules of procedure for  holding the  said  examination have also

been prescribed known as the Andhra Pradesh Public Service Commission

Rules of Procedure; Rule 4 whereof reads as under:

“4. Where a direct recruitment is to be made by selection, i.e., after interview only, and where the

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number  of  qualified  petitioners  is  unduly  large having regard to the actual  number of  vacancies available, the Commission may restrict the number of  candidates  to  be  called  for  interview to  such extent as it may deem fit.  Such shortlisting may be done by the  Commission  either  by holding  a written test or on the basis of preferential or higher qualifications and experience and after taking into account  the  requirements  with  reference  to  the Rules 22, 22-A of the General Rules for State and Subordinate Services and the Rule of reservation in  favour  of  local  candidates  where  they  are applicable.”

20. The State of Andhra Pradesh in exercise of its power conferred upon

it by the proviso appended to Article 309 of the Constitution of India framed

rules known as the Andhra Pradesh State and Subordinate Service Rules,

1996.  Rules 22 and 22-A thereof indisputably provide for reservation for

appointments to a service, class or category in favour of Scheduled Castes,

Scheduled  Tribes,  Backward  Classes,  women,  physically  handicapped,

meritorious sportsmen, ex-servicemen, etc.  Special rules and adhoc rules

have also been made for reservation of women by way of Rule 22-A thereof,

stating:

“22-A.  Women  reservation  in  appointment: Notwithstanding anything contained in these rules or special rules or Adhoc Rules:

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(1) In the matter of direct recruitment to posts for  which  women  are  better  suited  than  men, preference shall be given to women:

Provided  that  such  absolute  preference  to women shall not result in total exclusion of men in any category of posts.

(2) In the matter of direct recruitment to posts for  which  women  and  men  are  equally  suited, there shall be reservation to women to an extent to 33  1/3% of  the  posts  in  each  category  of  Open Competition,  Backward  Classes  (Group  –  A), Backward Classes (Group – B), Backward Classes (Group  –  C),  Backward  Classes  (Group  –  D), Scheduled  Castes,  Scheduled  Tribes  and Physically  Handicapped  and  Ex-servicemen quota:...”

21. Appellant  -  Commission  which  has  been  constituted  in  terms  of

Article 315 of the Constitution of India is bound to conduct examination for

appointment to the services of the State in terms of the Rules framed by the

State.  It is, however, free to evolve procedure for conduct of examination.

While conducting the examination in a fair and transparent manner as also

following known principles of fair play, it cannot completely shut its eyes to

the constitutional requirements of Article 335 of the Constitution of India,

which reads as under:

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“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.”

In State of Kerala and Another v. N.M. Thomas and Others [(1976) 2

SCC 310], this Court opined:

“41.  Article  335  of  the  Constitution  states  that claims of  members  of  the  Scheduled  Castes  and scheduled tribes shall be taken into consideration in the making of appointments to the services and posts  in  connection  with  affairs  of  the  State consistent  with  the  maintenance  of  efficiency of administration.  The  impugned  rule  and  the impugned orders are related to this constitutional mandate.  Without  providing  for  relaxation  of special  tests  for a temporary period it  would not have been possible to give adequate promotion to

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the lower division clerks belonging to Scheduled Castes and scheduled tribes to the posts of upper division  clerks.  Only those lower division clerks who were senior in service will get the benefit of the  relaxation  contemplated  by Rule  13-AA and the impeached orders. Proipotion to upper division from lower  division  is  governed  by  the  rule  of seniority subject only to passing of the qualified test. The temporary relaxation of test qualification made in favour of Scheduled Castes and scheduled tribes  is  warranted  by  their  inadequate representation  in  the  services  and  their  overall backwardness. The classification of the members of  the  Scheduled  Castes  and  scheduled  tribes already in service made under Rule 13-AA and the challenged  orders  for  exempting  them  for  a temporary  period  from  passing  special  tests  are within  the  purview  of  constitutional  mandate under Article 335 in consideration of they claims to redress imbalance in public service and to bring about parity in all communities in public services.”

22. How the Commission would judge the merit of the candidates is its

function.   Unless  the  procedure  adopted  by  it  is  held  to  be  arbitrary  or

against  the  known principles  of  fair  play,  the  superior  courts  would  not

ordinarily interfere therewith.  The State framed Rules in the light of the

decision of the High Court in  S. Jafeer Saheb (supra).  Per se, it  did not

commit  any  illegality.   The  correctness  of  the  said  decision,  as  noticed

hereinbefore,  is  not  in  question  having  attained  finality.   The  matter,

however, would be different if the said rules per se are found to be violative

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of Article 16 of the Constitution of India.  Nobody has any fundamental

right to be appointed in terms of Article 16 of the Constitution of India.  It

merely provides for a right to be considered therefor.  A procedure evolved

for laying down the mode and manner for consideration of such a right can

be interfered with only when it is arbitrary, discriminatory or wholly unfair.

23. We may notice that in Chattar Singh v. State of Rajasthan [(1996) 11

SCC 742], Rule 13 of the Rajasthan State and Subordinate Services (Direct

Recruitment  by  Combined  Competitive  Examinations)  Rules,  1962

prescribing the mode of conducting preliminary as also main examination

had been interpreted, opining :  

“…What  requires  to  be  done  is  that  the  Public Service Commission has to consider the number of vacancies notified or likely to be filled in the year of  recruitment  for  which  notification  was published. Then candidates who had appeared for the  Preliminary  Examination  and  qualified  for Main Examination are to be screened by the test. The  object  is  to  eliminate  unduly  long  list  of candidates  so  that  opportunity  to  sit  for  Main Examination  should  be  given  to  candidates numbering 15 times the notified posts/vacancies in various  services;  in  other  words  for  every  one post/vacancy there should be 15 candidates. There would be wider scope to get best of the talent by way  of  competition  in  the  examination.  The ultimate object is to get at least three candidates or

21

as is prescribed, who may be called for viva voce. Therefore, the lowest range of aggregate marks as cut-off for general candidates should be so worked out  as  to  get  the  required  number  of  candidates including OBCs, Scheduled Castes and Scheduled Tribes.  The  lowest  range  would,  therefore,  be worked  out  in  such  a  way  that  candidates numbering  15  times  the  notified  posts/vacancies would be secured so as to afford an opportunity to the  candidates  to  compete  in  the  Main Examination.

15. Under the proviso, if that range has not been reached by the candidates belonging to the SCs or the STs, there may be 5% further cut-off from the last range worked out for the general candidates so as to declare them as qualified for appearing in the Main  Examination.  In  other  words,  where candidates  belonging  to  the  SCs  and  STs numbering  15  times  the  total  vacancies  reserved for  them  are  not  available  then  the  Service Commission  has  to  go down further  and cut  off 5%  of  the  marks  from the  lowest  of  the  range prescribed for general candidates and then declare as eligible the SC and ST candidates who secured 5% less  than  the lowest  range fixed by PSC for general candidates so as to enable them to appear for  the  Main  Examination.  The  candidates  who thus obtain qualifying marks are eligible to appear and write  the  Main  Examination.  The respective proportion  of  1:3  or  as  may  be  prescribed  and candidates who qualified in the Main Examination will  be  called  by  the  Commission,  in  their discretion,  for  interview.  The  Commission  shall award  marks  to  each  candidate  interviewed  by them, having regard to their character, personality, address,  physique  and  knowledge  of  Rajasthani culture as is in vogue as per rules. However, for selection  to  the  Rajasthan  Police  Service, candidates having ‘C’ Certificate of NCC will be

22

given preference. The marks so awarded shall be added  to  the  marks  obtained  in  the  Main Examination by each such candidate.

16. In working out this procedure, if the minimum of  15  times  of  the  candidates  are  identified  and results declared, it would not be necessary to pick up  more  General/Reserved  candidates.  It  would not be necessary to declare the result of more than 15 times the total notified vacancies/posts so as to enable them to compete in the Main Examination. The object of screening test is to eliminate unduly long  number  of  persons  to  appear  for  Main Examination.  If  more  candidates  are  called  by declaring their result in Preliminary Examination, the object of Rule 13 would be frustrated.”

24. The Commission contends that in all the past examinations held, the

vacancies  pertaining  to  the  reserved  categories  had  been  filled  up.   The

vacancies were not required to be carried forward as sufficient numbers of

candidates belonging to the reserved category were available.  It is in the

aforementioned context, a statement was made in  G. Raju (supra) that the

Commission shall not carry forward the vacancies.   

In  Pitta  Naveen  Kumar and  Others  v.  Raja  Narasaiah  Zangiti  and

Others [(2006) 10 SCC 261], this Court held:

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“52. The authority of the State to frame rules is not in question. The purport and object for which the said notifications were issued also cannot be said to be wholly arbitrary so as to attract the wrath of Article  14  of  the  Constitution  of  India.  The appellants  herein  no  doubt  had  a  right  to  be considered but their  right to be considered along with  other  candidates  had  not  been  taken  away. Both  the  groups  appeared  in  the  preliminary examination.  Those  who  had  succeeded  in  the preliminary examination  were,  however,  allowed to sit in the main examination and the candidature of those had been taken into consideration for the purpose  of  viva  voce  test  who  had  passed  the written examination.”

25. Indisputably, the preliminary examination is  not a part  of the main

examination.  The merit  of the candidate is not judged thereby.  Only an

eligibility  criterion  is  fixed.   The  papers  for  holding  the  examination

comprise of General Studies and Mental Ability.  Such a test must be held to

be  necessary  for  the  purpose  of  judging  the  basic  eligibility  of  the

candidates to hold the tests.  How and in what manner the State as also the

Commission would comply with the constitutional requirements of Article

335  of  the  Constitution  of  India  should  ordinarily  not  be  allowed  to  be

questioned.   

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The proviso appended to Article 335 of the Constitution, to which our

attention has been drawn by Mr. Rao, cannot be said to have any application

whatsoever in this case.   Lowering of marks for the candidates belonging to

the reserved candidates is not a constitutional mandate at the threshold.  It is

permissible only for the purpose of promotion.  Those who possess the basic

eligibility would be entitled to appear at the main examination.  While doing

so, in regard to General English whereas the minimum qualifying marks are

40% for OCs, it would be 35% for BCs and 30% for SC/STs and physically

handicapped persons.   However,  those marks were not  to be counted for

ranking.  We have noticed hereinbefore, that candidates belonging to the

reserved categories as specified in the notification are not required to pay

any fee.  Their age is relaxed upto five years.  It is, therefore, not correct to

contend that what is given by one hand is sought to be taken by another.

They  can,  thus,  appear  in  the  examination  for  a  number  of  times.

Indisputably, the right conferred upon the writ-petitioners – respondents in

terms of Rules 22 and 22-A of the Andhra Pradesh State and Subordinate

Service Rules, 1996 was to be protected.  The extent of relaxation has been

recognized.  By reason of such a provision, the right to be considered has

not been taken away.   

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26. Judging  of  merit  may be  at  several  tiers.   It  may undergo  several

filtrations.  Ultimately, the constitutional scheme is to have the candidates

who would be able to serve the society and discharge the functions attached

to the office.  Vacancies are not filled up by way of charity.  Emphasis has

all  along been made,  times without  number,  to  select  candidates  and/  or

students based upon their merit in each category.  The disadvantaged group

or the socially backward people may not be able to compete with the open

category people but that would not mean that they would not be able to pass

the basic minimum criteria laid down therefor.

27. We have been informed at the bar that 12 handicapped people have

appeared at the main examination and, thus, it would be possible to fill up

the posts even from that category of candidates.   

28. Submission of Mr. Rao that  by reason of such a process,  only the

forward  sections  of  backward  classes  who  have  the  advantage  of

undergoing coaching classes,  etc.  would be given preference may not  be

correct.  No statistical data had been placed before the High Court or before

us.  We have not been furnished any information as to on what basis, such a

contention could be raised.  All the candidates are highly educated.  Merit is

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not the monopoly of people living in urban areas.  The State must adopt

some criteria.  It having regard to its limited resources cannot allow lakhs

and lakhs of candidates to appear at the examination as also at the interview.

It is bound to devise some procedure to shortlist the candidates.  Rule 4 of

the Andhra Pradesh Public Service Commission Rules of Procedure which

refers to Rules 22 and 22-A of the Andhra Pradesh State and Subordinate

Service Rules, 1996 would apply only where shortlisting is done.  The first

part of the said Rule empowers the Commission to restrict the number of

candidates  to  be  called  for  interview to  such  extent  as  it  may deem fit.

While  shortlisting,  however,  it  may hold  a  written  test  or  provide  for  a

preferential or higher qualification and experience and only for that purpose

it is required to take into account the requirements with reference to Rules

22 and 22A of the Andhra Pradesh State and Subordinate Service Rules,

1996 and the rule of reservation in favour of local candidates.

29. Strong reliance has  been placed by Mr.  Rao on  Sangram Singh v.

Election  Tribunal,  Kotah,  Bhurey  Lal  Baya [(1955)  2  SCR  1]  wherein

Vivian Bose. J.,  stated as under:

27

“Now a  code  of  procedure  must  be  regarded  as such.  It  is  procedure,  something  designed  to facilitate justice and further its  ends:  not a penal enactment  for  punishment  and  penalties;  not  a thing designed to trip people up. Too technical a construction  of  sections  that  leaves  no  room for reasonable  elasticity  of  interpretation  should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.”

The  said  observation  was  made  keeping  in  view  the  concept  of

justice.  By reason of providing for a preliminary examination, the right of

the  reserved  category  candidates  has  not  been  taken  away.   The  means

cannot be allowed to defeat the ends which the constitutional scheme seeks

to achieve.   

30. Reliance has also been placed by Mr. Rao on Akhil Bharatiya Soshit

Karamchari Sangh (Railway) v.  Union of India and Others [(1981) 1 SCC

246] wherein this Court held:

“76.  Proceeding on this  footing, the fundamental right of equality of opportunity has to be read as justifying  the  categorisation  of  SCs  &  STs separately  for  the  purpose  of  “adequate representation” in the services under the State. The object  is  constitutionally  sanctioned  in  terms,  as

28

Articles  16  (4)  and  46  specificate.  The classification  is  just  and  reasonable.  We  may, however, have to test whether the means used to reach the end are reasonable and do not outrun the purposes  of  the classification.  Thus the scope of the case is narrowed down.”

31. We have proceeded on the same assumption.  What was in question in

that case was as to whether in matter of promotions reservation of posts for

SC/ST candidates is unconstitutional.  It is now a settled law that it is not.

The said observation inter alia was in tone with the opinion of Ray, CJ in

N.M. Thomas (supra).

The said observations, in our opinion, have no application to the fact

of the present case.

32.   Submission  of  Mr.  Rao  is  that  the  expression  “irrespective  of

communities”  has wrongly been used.   In support  of  the said contention

reliance has  been placed on the expression  “Irrespective  of  Race” in  the

Words and Phrases, Permanent Edition, Volume 22A, page 506, which is in

the following terms:

29

“By Act May 2, 1890,  c.  182 § 31, 26 Stat.  94, Sections 566, 567, Mansf. Dig., was extended over Indian Territory with a proviso excepting Indians and their estates.  By act June 7, 1897, C.3, § 1, 30 Stat.  83,  such  laws  were  made  to  apply  to  all persons in the territory “irrespective of race” and by the Curtis Act June 28, 1898, C. 517, § 26, 30 Stat.  504,  it  was  provided  that  the  laws  of  the Indian tribes should not longer be enforced.  Held that  by  virtue  of  such  provisions,  a  noncitizen husband  of  a  Creek  allottee  who  died  after  the birth of a child of the marriage was entitled by the curtesy  to  a  life  estate  in  her  allotted  lands. Armstrong v. Wood, 195 F. 137, 141”  

33. The word “community”, however, is understood in different senses,

keeping in view the purport and object for which the said term is used.  It

may be given a natural  meaning.  It  may have to be read along with the

words ‘caste’ and ‘religion’ in which event it will have to have a narrower

meaning  than  the  dictionary  meaning  of  a  body  of  people  having  same

common interest.  [See Advanced Law Lexicon, 3rd edition, 2005, page 907]

34. Indisputably, when the said words were used, it took its clue from S.

Jafeer Saheb (supra).

30

The  expression  might  have  been  loosely  used  but  its  purport  and

object  had  been  understood  by candidates  including  the  writ  petitioners.

The  provisions  for  holding  the  preliminary  examination  were  for  the

purpose  of  maintaining  a  basic  standard.   The  High  Court  has  directed

deletion of the said words.

35. Mr. P.P. Rao has relied upon the following paragraph of the decision

of this Court in N.M. Thomas (supra):

“43. Scheduled Castes and scheduled tribes are not a  caste  within  the ordinary meaning  of  caste.  In Bhaiyalal  v.  Harikishan Singh12 this  Court  held that  an  enquiry  whether  the  appellant  there belonged  to  the  Dohar  caste  which  was  not recognised  as  a  scheduled  caste  and  his declaration that he belonged to the Chamar caste which  was  a  scheduled  caste  could  not  be premitted because of the  provisions contained in Article 341. No court can come to a finding that any  caste  or  any  tribe  is  a  scheduled  caste  or scheduled  tribe.  Scheduled  caste  is  a  caste  as notified  under  Article  366(25).  A notification  is issued  by  the  President  under  Article  341  as  a result  of  an  elaborate  enquiry.  The  object  of Article  341  is  to  provide  protection  to  the members of Scheduled Castes having regard to the economic  and  educational  backwardness  from which they suffer.”

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36. For the views, we have taken earlier, it is not necessary for us to go

into the above mentioned larger question particularly having regard to the

recent decision of this Court in Ashoka Kumar Thakur v. Union of India and

Others [(2008) 6 SCC 1]

37. One other aspect of the matter must be kept in mind.   

If category-wise statement is  prepared, as has been directed by the

High  Court,  it  may  be  detrimental  to  the  interest  of  the  meritorious

candidates  belonging  to  the  reserved  categories.   The  reserved  category

candidates  have two options.   If they are meritorious  enough to compete

with the open category candidates, they are recruited in that category.  The

candidates below them would be considered for appointment in the reserved

categories.   This  is  now a well-settled principle  of  law as  has  been laid

down by this Court in several decisions.  [See for example, Union of India

and Anr. V. Satya Prakash and Ors. (2006) 4 SCC 550, para 18 to 20, Ritesh

R. Shah v.  Dr. Y.L. Yamul (1996) 2 SCR 695 at 700-701,  R.K. Daria v.

Rajasthan Public Service Commission, (2007) 8 SCC 785, para 9]

38. As we have entered into the merit of the matter, in our opinion, it is

not necessary to determine the question as to whether the writ petitioners –

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respondents  having  appeared  in  the  examination  were  estopped  and

precluded from filing the writ petition.   

39. Reservation  of  women,  handicapped  etc.  is  on  a  horizontal  basis.

Reservation to the category of candidates has to be given irrespective of the

class or category of candidates.  A final selection has to be made.  If such a

procedure,  as directed by the High Court,  is  to be taken recourse to,  the

same would give rise to a complexity.

40. So  far  as  the  question  of  locus  standi  of  the  appellant  to  file  this

Special Leave Petition is concerned, we are of the opinion that it  has the

locus  standi.   The  High  Court  not  only  has  set  aside  the  GOMs  dated

31.12.1997 but it has also set aside the notification dated 27.12.2007.  If the

High Court’s judgment is  to be implemented, a fresh selection procedure

has to be undertaken by the appellant.  Furthermore, in terms of Order 41,

Rule 4 of the Code of Civil  Procedure,  the  appellate court,  in the event,

finds merit in the appeal at the instance of one of the respondents may set

aside  the  entire  judgment  although  another  respondent  had  not  appealed

thereagainst.   

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41. The  Commission  had  undertaken  the  task  of  holding  preliminary

examination.   It  had followed the procedure laid  down in  its  notification

issued in this behalf and the GOMs issued by the State.  It, therefore, could

maintain a writ petition.

42. Mr. Rao, however, submits that in order to maintain an appeal, the

Commission should have been a ‘person aggrieved’.  Reliance in this behalf

has been placed on Thammanna v. K. Veera Reddy  Ors. [(1980) 4 SCC 62 :

(1981) 1 SCR 73] wherein in the context of the provisions of Section 116C

of the Representation of People Act, 1951, it was held:

“14…As a general  proposition,  therefore,  it  may safely be stated that before a person is entitled to maintain  an  appeal  under  Section  116-C,  all  the conditions mentioned below, must be satisfied:

(1) that the subject-matter of the appeal is a conclusive determination by the High Court of the rights with regard to all or any of the matters in controversy,  between  the  parties  in  the  election petition,

(2) that the person seeking to appeal has been a party in the election petition, and

(3) that he is a “person aggrieved”, that is a  party  who  has  been  adversely  affected  by  the determination…”

34

No exception to the rule can be taken.  We are not, however, dealing

with  the  election  petition.   We are  dealing  with  a  rule  laid  down  by  a

constitutional authority as also the State.

43. Mr. Rao also relied upon the following paragraph of a decision of this

Court  in  A.P.  Public  Service  Commission v.  P.  Chandra  Mouleesware

Reddy [(2006) 8 SCC 330]:

“13. The State of Andhra Pradesh, we may notice, did  not  question  the  order  of  the  Tribunal.  The Commission  was  required  to  carry  out  fresh exercise in compliance with the directions of the Tribunal. For the said purpose, no fresh selection process was to be undertaken. If the State did not have  any  objection  to  fill  up  the  said  posts realising the mistake committed by it;  we fail  to see any reason as to why the Commission should have felt aggrieved by the order of the Tribunal.”

In that case, the State had accepted the judgment of the High Court.

A mistake on the part of the State to issue the impugned direction was in

question therein.  It was in that context the aforementioned observations had

been made.   

Therein 19 posts were to be filled up whereas a direction was issued

only to fill up ten posts.  The Tribunal directed the State to fill  up all 19

35

posts.   The  State  of  Andhra  Pradesh  did  not  question  the  order  of  the

Tribunal.   Even the Commission was not  required to carry out  any fresh

exercise to comply with the direction of the Tribunal.  As the order of the

Tribunal was not found to be unjustified, the High Court refused to interfere

therewith.  The observations were made only in the aforementioned context.

44. For the  reasons  aforementioned,  the impugned judgment  cannot  be

sustained, which is set aside accordingly.  The appeal is allowed.  However,

in the facts and circumstances of the case, there shall be no order as to costs.

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi; April 08, 2009

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