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CASE NO.: Appeal (civil)  4868 of 2007

PETITIONER: Marripati Nagaraja & Ors

RESPONDENT: The Government of Andhra Pradesh & Ors

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.7222 of 2004) [With CA Nos.4869-4873/07 arising out of SLP (C) Nos.15032-15036 of  2004]

S.B. Sinha, J.

1.      Leave granted. 2.      Andhra Pradesh Public Service Commission, on the advice of the  State of Andhra Pradesh, issued a notification on or about 1.10.1992 inviting  applications for recruitment to various posts including 34 posts in the  category of Assistant Director of Agriculture in the Andhra Pradesh  Agricultural Service.  Although in the said notification stipulations were  made in respect of grant of reservation for women to the extent of 30%, no  such stipulation was made in respect of the vacancies in the category of  Assistant Director of Agriculture. This appeal involves the question of  reservation of women in the said category. 3.      Appellants herein had been working as Agricultural Officer in Andhra  Pradesh Agricultural Service.  They, in terms of the said notification, applied  for the said posts.  A screening test was to be held therefor.  About 510  candidates appeared for the screening test on 27.12.1992. 4.      Several original applications were filed before the Andhra Pradesh  Administrative Tribunals claiming different reliefs and on different grounds.   Appellant herein filed an original application which was registered as OA  No.6451 of 1992 questioning the carry forward of vacancies from the year  1976; the omission to make zonal reservation; prescription of minimum and  maximum age limits by way of eligibility criteria as a result whereof,  allegedly, some of the agricultural officers were deprived of their right to  apply for the posts.  Indisputably, interim orders were passed in January  1993 by the Tribunal which remained in force till the disposal of the said  original applications. 5.      The State of Andhra Pradesh issued GOMs No.928 G.A.D. on or  about 6.10.1995 providing for reservations of women candidates to the  extent of 30% in the matter of direct recruitment with retrospective effect  from 2.1.1984.  By reason of another Notification issued on 28.5.1996, the  percentage of reservation for women was increased to 331/3%.  Original  Applications filed by the petitioners as also those of other employees were  dismissed by the Tribunal on 23.11.1998.   6.      An application filed by the Andhra Pradesh Public Service  Commission to short-list the candidates was allowed by the Tribunal by an  order dated 14.11.2000 by holding a fresh screening test for the 510  candidates who had appeared therein on 27.12.1992 and to finalise the  result.  A Notification for conducting a fresh screening test was issued on  12.12.2000 pursuant whereto a second screening test was conducted on  7.1.2001.  Appellant, although appeared, did not pass the said test.   7.      Inter alia, on the premise that a very limited time had been granted to  them for appearing in the second screening test as also on the ground that no

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reservation for women could be provided for in terms of the said  Notification dated 28.5.1996, an original application marked as OA No. 83  of 2001 was filed by the appellants before the Tribunal on 8.1.2001.  No  order of stay was passed therein.   8.      The Public Service Commission interviewed the candidates on  8.1.2001 and 9.1.2001 who had been found suitable therefor.        An interim order was passed by the Tribunal only on 9.1.2001.   However, by order dated 1.8.2003, the original applications were dismissed  by the Tribunal holding that the selections made by the Commission did not  call for any interference except to the extent that the selections have to be  revised restricting the reservation in favour of women to the extent of 30%  and wherever vacancies which were reserved to be filled by women  candidates could not be filled for want of women candidates, they should be  filled up by men in terms of the rules existing at the time of notification. 9.      Writ petition filed by the appellants questioning the same was  dismissed.  A writ application was also filed by the Andhra Pradesh Public  Service Commission challenging the decision of the Tribunal restricting  reservation for women to 30% instead of 331/3%.  By reason of the  impugned judgment both the writ petitions have been dismissed. 10.     Not only the original applicants but the Andhra Pradesh Public  Service Commission also are, thus, before us.   11.     Mr. Mohan Rao, learned counsel appearing on behalf of the appellant,  would submit that keeping in view the fact that for the purpose of giving an  opportunity to the appellants herein for appearance in the second test, only a  few days\022 time had been granted by the Commission, the same must be held  to be wholly arbitrary.  It was furthermore contended that by reason of any  notification issued subsequent to the date of advertisement, a provision for  reservation of women could not have been made.   12.     Learned counsel appearing on behalf of the Andhra Pradesh Public  Service Commission, on the other hand, submitted that as on the date of  publication of the notification, selection process was not over, the Tribunal  and consequently the High Court committed an error in opining that  reservation for women should have been kept confined to 30% only.        The Notification being GOMs No.928 dated 6.10.1995 reads thus : \023In exercise of the powers conferred by the proviso  to Article 309 read with clause (4) of Article 16  and Article 335 of the Constitution of India, the  Governor of Andhra Pradesh hereby makes the  following amendment to the Andhra Pradesh State  and Subordinate Service Rules. 2.      The amendments hereby made shall be  deemed to have come into force in so far as it  relates to the reservation to the extent of 30% of  posts:- (a)     with effect from the 2nd January, 1984 to  each category of O.C., S.C., S.T., and to the  unclassified B.Cs; and (b)     with effect from the 17th October, 1990 to  the categories of B.Cs as classified into  groups the physically handicapped and Ex- servicemen quota. AMENDMENT         In the Andhra Pradesh State and  Sunbordinate Services Rules, for Sub-rule (2) of  Rule 22-A, the following shall be substituted  namely:- \023(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 of  30% of the posts in each category of  O.C., B.C-A, B.C.B., B.C.C., B.C.D.,  S.C., S.T. and physically handicapped  and Ex-Servicemen quota.                 Provided that if sufficient

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number of women candidates are not  available the vacancies shall be filled  in by men.\024 EXPLANATION:    \023It is hereby clarified that all  sections made in accordance with sub-rule (2)  prior to its amendment shall be and shall be  deemed always to have been made in accordance  with this rule; and shall not entitle any person to  enforce 30% reservation merely on the ground that  this amendment is made with retrospective effect.\024 (BY ORDER AND IN THE NAME OF THE  GOVERNOR OF ANDHRA PRADESH)\024

       It is now a well settled principle of law that the rules which would be  applicable for selecting the candidates would be the one which were  prevailing at the time of the notification.  It is also equally well settled that  the State may, subject to constitutional limitations, amend the rule with  retrospective effect.  Rule 22-A which was applicable as on the date of the  said notification reads as under : \023Rule 22-A. Notwithstanding anything contained  in these Rules or Special or Ad hoc Rules,\027 (1)     In the matter of direct recruitment to posts  for which women are better suited than men,  preference shall be given to women : (G.O.Ms.  No.472, G.A., Dt.11.10.85)         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,  other things being equal, preference shall be given  to women and they shall be selected to an extent of  at least 30% of the posts in each category of O.C.,  B.C., S.C. and S.T. quota. (3)     In the matter of direct recruitment to posts  which are reserved exclusively for being filled by  women they shall be filled by women only (Vide  G.O.Ms. 691, G.A. (Ser-D), Dt.22.11.1984, w.e.f.  2.1.1984)\024

11.     The women candidates, in terms thereof, were, therefore, only entitled  to preference.  By reason of the said notification merely, the percentage has  been increased from 30% to 331/3%.  It has been given a retrospective effect;  as the existing sub-rule (2) of Rule 22-A was substituted.  By reason of the  said Notification, no existing right of any person has been taken away.  In  fact, as the selection process was not over, the question of applicability of  the said notification would have fallen for consideration only when a final  selection list was to be made and not prior thereto.   12.     The State, in exercise of its power conferred upon it under the proviso  appended to Article 309 of the Constitution of India, is entitled to make rules  with retrospective effect and retro-active operation.  Ordinarily, in absence  of any rule and that too a rule which was expressly given a retrospective  effect, the rules prevailing as on the date of the notification are to be applied.   But if some rule has been given a retrospective effect which is within the  domain of the State, unless the same is set aside as being unconstitutional,  the consequences flowing therefrom shall ensure.  In such an event, the  applicable rule would not be the rule which was existing but the one which  had been validly brought on the statute book from an anterior date.  The  Tribunal and the High Court, therefore, in our opinion, committed an error in  opining otherwise, particularly when the constitutionality of the said rule  was not in question. 13.     In N.T. Devin Katti v. Karnataka Public Service Commission [(1990)  3 SCC 157], this Court categorically held :

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\02311. There is yet another aspect of the question.   Where advertisement is issued inviting  applications for direct recruitment to a category of  posts, and the advertisement expressly states that  selection shall be made in accordance with the  existing rules or government orders, and if it  further indicates the extent of reservations in  favour of various categories, the selection of  candidates in such a case must be made in  accordance with the then existing rules and  government orders. Candidates who apply, and  undergo written or viva voce test acquire vested  right for being considered for selection in  accordance with the terms and conditions  contained in the advertisement, unless the  advertisement itself indicates a contrary intention.  Generally, a candidate has right to be considered in  accordance with the terms and conditions set out in  the advertisement as his right crystallises on the  date of publication of advertisement, however he  has no absolute right in the matter. If the  recruitment Rules are amended retrospectively  during the pendency of selection, in that event  selection must be held in accordance with the  amended Rules. Whether the Rules have  retrospective effect or not, primarily depends upon  the language of the Rules and its construction to  ascertain the legislative intent. The legislative  intent is ascertained either by express provision or  by necessary implication; if the amended Rules are  not retrospective in nature the selection must be  regulated in accordance with the rules and orders  which were in force on the date of advertisement.  Determination of this question largely depends on  the facts of each case having regard to the terms  and conditions set out in the advertisement and the  relevant rules and orders. Lest there be any  confusion, we would like to make it clear that a  candidate on making application for a post  pursuant to an advertisement does not acquire any  vested right of selection, but if he is eligible and is  otherwise qualified in accordance with the relevant  rules and the terms contained in the advertisement,  he does acquire a vested right of being considered  for selection is accordance with the rules as they  existed on the date of advertisement. He cannot be  deprived of that limited right on the amendment of  rules during the pendency of selection unless the  amended rules are retrospective in nature.\024 (Emphasis supplied)   14.     In this case, the qualification of a candidate is not in question.   Nobody has been deprived of his right of being considered.  Only a  preferential right had been given to the women.  In that view of the matter,  the High Court, in our opinion, was not correct in taking the said view.   15.     The other contention of Mr. Rao that the candidates had given only  seven days\022 time for making preparation to appear in the second screening  test, cannot, in our considered view, give rise to a ground for setting aside  the entire selection process.  The Tribunal did not make any discrimination.   One screening test had already been held.  The number of candidates  appeared in the first screening test was 510.  The Commission obtained the  permission of the Tribunal for holding the second screening test.  It issued a  notification on 12.12.2000 stating that such a test would be conducted on  7.1.2001.  All the candidates were given the same time for preparation.   Only because the appellants herein were employees at the relevant time, the

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same by itself could not confer on them any special privilege to ask for an  extended time.  They had no legal right in relation thereto.  Appellants had  appeared at the examination without any demur.  They did not question the  validity of the said question of fixing of the said date before the appropriate  authority.  They are, therefore, estopped and precluded from questioning the  selection process.   15.     For the reasons aforementioned, the appeals of the Andhra Pradesh  Public Service Commission are allowed and that of Marripati Nagaraja is  dismissed with costs.  Counsel\022s fee quantified at Rs.25,000/- (Rupees  twenty five thousand only). 16.     The Andhra Pradesh Public Service Commission is hereby directed to  finalise the selection process in the light of the judgment of this Court as  expeditiously as possible and not later than three months from the date of  receipt of a copy of this judgment.