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CASE NO.: Appeal (civil)  4129 of 2006

PETITIONER: Andhra Pradesh Public Service Commission                         

RESPONDENT: P. Chandra Mouleesware Reddy & Ors.                      

DATE OF JUDGMENT: 14/09/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T

S.B. Sinha, J.

       Leave granted.

Andhra Pradesh Public Service Commission (for short, ’the  Commission’) is in appeal before us aggrieved by and dissatisfied with the  judgment and order of a Division Bench of the High Court of Judicature of  Andhra Pradesh dismissing a writ petition filed by it from an order of the  Andhra Pradesh State Administrative Tribunal dated 15.10.2004 directing it  to make recruitment from the selection list to the nine posts of Deputy  Superintendent of Police as only ten out of nineteen posts advertised therefor  had been filled up.   

The Commission advertised nineteen posts for recruitment to the post  of Deputy Superintendent of Police.  Pursuant thereto and in furtherance  thereof, applications were filed, inter alia, by the Respondent Nos.1 to 3  herein.  The State, however, asked the Commission to fill up only ten posts.   An exercise was carried out accordingly by the Commission purported to be  in terms of Rule 6 of the Public Service Commission Rules.   

Aggrieved by and dissatisfied therewith, the Respondent Nos. 1 to 3  filed an Original Application before the Andhra Pradesh Administrative  Tribunal (Tribunal).  The Tribunal noticed that the Respondent Nos. 1 to 3  pursuant to the advertisement of the Commission appeared at the written  examination.  They had also appeared at the interview.  At that stage only,  the State of Andhra Pradesh directed the Commission to fill up only ten  posts, which was complied with.   It is not disputed that nineteen posts were vacant.  The vacancies were  notified in terms of Rule 3 of the Andhra Pradesh Police Service Rules.  It is  also not denied or disputed that the said posts were to be filled up both by  way of direct recruitment as also by promotion in the ratio of 1:2.  In not  filling up the said posts, according to the Respondents, the provisions of the  said Rules have been violated.   

In its counter affidavit, the State contended :

"According to the programme of selections to be  made by the Andhra Pradesh Public Service Commission  among other things being equal that Government in the  case of State Services should send to Andhra Pradesh  Public Service Commission estimates of the number of  candidates to be selected for each service.  The estimate  of the number of candidates required should cover a  period of 12 months following the dates on which the  lists of selected candidates are due to be communicated

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to the appointing authorities according to the programme.   As the appointing authorities are not adhering to the time  schedule and not notifying the vacancies to the A.P.  Public Service Commission in time, which results in  delay in making recruitment in the State Government  Offices the following instructions were issued :

"The matter has been reviewed and it is hereby  ordered that 1/3 of the vacancies in respect of retirements  in the particular year of recruitment in respect of the  posts which are within the purview of the A.P. Public  Service Commission for making direct recruitment shall  be notified in advance to the Andhra Pradesh Public  Service Commission in order to hasten up the recruitment  and to enable the Commission to programme its selection  suitably."

In Rc.No.564/G3/97, dt.8.7.97, the Director  General and Inspector General of Police, Andhra  Pradesh, Hyderabad has addressed the General  Administration (Ser) Department with a request to notify  19 backlog vacancies of Deputy Superintendent of Police  Category-2 for direct recruitment but not the vacancies  that would arise in future and he has also extended the  same letter to the Andhra Pradesh Public Service  Commission which in turn notified the vacancies for the  purpose of inviting applications from the open market.

However on the presumption that they were to be  filled up for future recruitment, Government in Home  Department have given directions to the Andhra Pradesh  Public Service Commission that only 10 vacancies for  the post of Deputy Superintendent of Police instead of 19  vacancies be notified as per Govt. Memo No.1946/Ser- A/90-1, dt.18.12.90, which is a mistake of fact i.e., vide  impugned Government Letter No.21701/Pol.E/A1/99-1  dt.2.6.99."

The Tribunal, therefore, opined that mistake on the part of the State  being admitted, the applicants were entitled to the reliefs prayed for.  It was  furthermore observed that the State before issuing the direction to the  Commission should have consulted the Director General of Police and, thus,  its decision was arbitrary.  In regard to the stand of the Appellant, the  Tribunal observed : "Though the APPSC was acting at the specific  instance of the first respondent i.e. Government, and it is  not its own fault that not filling up the 19 vacancies  occurred, still the action itself has to be declared as  arbitrary and illegal on account of the basis of the action.   

In the facts and circumstances of the case, it is  declared that the APPSC ought to have selected 19  candidates strictly following the rule of reservation  instead of 10 candidates.  It is also further declared that  the first and second respondents ought to have selected  19 candidates as against 10 candidates actually by  following the rule of reservation."

The writ petition filed by Appellant was dismissed by a Division  Bench of the High Court stating :

"The only submission made by the learned counsel  for the writ petitioner is that at this stage, after a lapse of  7 years, if the direction of the Tribunal is to be

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implemented it would involve a great deal of exercise on  the part of the Service Commission as the examination  was conducted not only for the posts of Deputy  Superintendent of Police but to 18 other categories of  posts belonging to the same group.  This argument, in our  considered opinion, is only to be stated as rejected, as  there is a constitutional obligation of the Service  Commission to conduct the examination to enable the  State to fill up the various posts to be filled up by the  State.  Such an obligation necessarily involves a onerous  exercise, but that cannot be an excuse to decline the  discharge of an obligation mandated by the Constitution  of India."    Submission of Mr. G. Prabhakar, learned counsel appearing on behalf  of the Commission before us is that as the selection process having been  completed on 20.8.2000 the Tribunal should not have directed filling up of  nine vacancies in September, 2003 as in terms of Rule 6 of the Public  Service Commission Rules, the remaining vacancies were to be filled up  only in the next year.  It was submitted that if the direction is to be carried  out, the same will have a cascading effect.   

Mr. P.P. Rao, learned Senior Counsel appearing on behalf of the  Respondents, on the other hand, would submit that the candidate should not  suffer owing to a mistake on the part of the State.   

Indisputably, by reason of Advertisement No.5 of 1998, nineteen  posts of Deputy Superintendent of Police Category-2 in Police Service in the  pay scale of Rs.3880-8140 were notified.  Selection process ensued in  furtherance thereof.  The State of Andhra Pradesh by a letter dated 2.6.1999,  however, asked the Commission to send recommendation for only ten  vacancies in the said category for the purpose of direct recruitment, stating :

"According to the orders issued in Govt. Memo  No.1946/Ser.A/90-1, Dt.18.12.90, 1/3 of the vacancies in  respect of retirements in a particular year of recruitment  in respect of the posts which are within the purview of  A.P.P.S.C. for making direct recruitment, shall be  notified A.P.P.S.C.; and not on the basis of the total No.  of substantive vacancies in the Dept. from its inception.   Accordingly the D.G. & I.G.P. has been requested to  send revised proposals and his proposals were awaited.   As the matter stood thus, it is not clear as to how the  estimate of 19 posts of D.Ss.P. were cleared by Fin. &  Plg. Dept. and advertised by A.P.P.S.C. later, as stated in  the letter third cited, without the confirmation by this  Dept.

Subsequently, A.P.P.S.C. has also called for  estimate of vacancies upto 31.8.1998 in the letter second  cited.  Govt. have furnished the estimate i.e. 10  vacancies, keeping in view the instructions issued in  Govt. Memo 1946/Ser.A/90-1, Dt.18.12.90 are also  taking into consideration the vacancies arose upto  31.8.1998."

 The finding of the Tribunal and consequently that of the High Court,  in that, it was a mistake on the part of the State to issue the aforementioned  direction.  The same is not in dispute.   

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 of the directions of the Tribunal.  For the said  purpose, no fresh selection process was to be undertaken.  If the State did

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not have any objection to fill up the said posts realizing 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 Ms. Neelima Shangla vs. State of Haryana & Ors. [(1986) 4  SCC 268], this Court opined :

"........That was wrong.  The names of all the qualified  candidates had to be sent to the government.  The reason  given by the Public Service Commission for not  communicating the entire list of qualified candidates to  the government is that they were originally informed that  there were only 28 vacancies.  That is not a sound reason  at all.  Under the "Rules relating to the appointment of  Subordinate Judges in Haryana", the Public Service  Commission is not concerned with the number of  vacancies at all.  Nor is it expected to withhold the full  list of successful candidates on the ground that only a  limited number of vacancies are available.  The  Government of Haryana has taken the stand that they  were unable to select and appoint more candidates as the  names of only a few candidates were sent to them by the  Public Service Commission.  It now transpires that even  before the Public Service Commission sent its truncated  list to the government, the High Court had already  informed the government that there were more vacancies  which required to be filled.  The government not  knowing that the names of several candidates who were  qualified had been withheld from the government by the  Service Commission, wrote to the Service Commission  to hold a fresh competitive examination.  If the  government had been aware that there were qualified  candidates available, they would have surely applied  Rule 8 of Part D and made the necessary selection to be  communicated to the High Court.  The net result is that  qualified candidates, though available, were not selected  and were not appointed.  Miss Neelima Shangla is one of  them.  In the view that we have taken of the rules, Miss  Neelima Shangla is entitled to be selected for  appointment as Subordinate Judge in the Haryana Civil  Service (Judicial Branch)."  

The candidates, therefore, in our opinion, should not suffer owing to a  mistake on the part of the State.  The Tribunal, we have noticed  hereinbefore, directed the Commission to notify the remaining nine  candidates in the merit order following the ’Rule of Reservation’.  It was  categorically stated that those who would be appointed in terms thereof  would be able to claim any right only with prospective effect, i.e., from the  date of their actual joining of service.  It, therefore, cannot be said that the  order of the Tribunal was in any manner unjustified, arbitrary or  unreasonable.  The High Court, thus, in our opinion, rightly refused to  exercise its jurisdiction under Article 226 of the Constitution of India.

We may notice that in S.L. Kaul & Ors. vs. Secretary to  Government of India, Ministry of Information and Broadcasting, New  Delhi & Ors. [(1989) Supp.1 SCC 147], this Court held that to take a  technical view so as to deprive the candidate of his right of seniority, would  be unjust.     The question was considered at some length by a Division Bench of  this Court in Virender S. Hooda & Ors. vs. State of Haryana & Anr.  [(1999) 3 SCC 693], wherein it was held that the Commission should follow  the instructions of the state provided the same is in accordance with rules.

The policy of the State was to fill up all the nineteen posts.  The

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Respondents were, thus, entitled to have their case considered by the  Commission in accordance with merits only.  Mistakenly, the State directed  to fill up only ten posts which was realised by it when the Original  Application was filed before the Tribunal.  It accepted its mistake in no  uncertain terms.

Rule 6 of the Public Service Commission Rules reads as follows :

"The list of candidates approved/selected shall be  equal to the number of vacancies only including those for  reserve communications/categories notified by the unit  officers/Government.  The layout vacancies if any due to  relinquishment/ and non-falling selected candidates shall  be notified in the next recruitment."

Rule 6 of the Public Service Commission Rules, whereupon Mr.  Prabhakar placed reliance, is not of much significance.  It operates in a  different field.  It will have no application in a case of this nature.  The law  cannot be permitted to act unfairly.  It cannot be arbitrary.  The country is  governed by a Rule of Law and not by men.  Thus, although a mistake had  been committed by the State, the same cannot be directed to be perpetrated  only because the Commission will have to undertake the selection process  again and particularly, in view of the fact that the State of Andhra Pradesh  did not question the order passed by the tribunal.   

For the reasons aforementioned, we find no merit in this appeal,  which is, accordingly, dismissed with costs quantified at Rs.25,000/- payable  by Appellant  in favour of Respondent Nos. 1 to 3.