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CASE NO.: Appeal (civil)  3006 of 2001

PETITIONER: Mohd. Siddiq Ali                                                         

RESPONDENT: High Court of A.P.Through Registrar & Ors.                                       

DATE OF JUDGMENT: 24/10/2005

BENCH: CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan       

JUDGMENT: J U D G M E N T (With W.P.(C) No.504 of 1999, C.A. No.3007 of 2001, W.P. (C) No.22 of 2001,  W.P.(C) No.554 of 2001 and W.P.(C) No.555 of 2001)

G.P. MATHUR, J.  

1.      The issue raised in the Civil Appeals and Writ Petitions which have been  filed under Article 32 of the Constitution is same and, therefore, they are being  disposed of by a common order.  

2.      The High Court of Andhra Pradesh issued a notification on 23.10.1996 for  making appointments to the posts of District Munsiff and the relevant part of the  notification which has a bearing on the controversy in dispute is reproduced  below :

"Notification  For appointment to the post of District Munsiffs.         Applications are invited for 200 posts of District Munsiffs of  which 27 by limited Recruitment-backlog vacancies and 173 by  General Recruitment in the A.P. State Judicial Services.

VACANCY POSITION : ............................................................................................ .......... ............................................................................................ .......... Note : 1. The General Recruitment vacancies are subject to the rule  of Spl. Representation under Rule 10 of the Spl. Rules for  A.P.  State  Judicial Service and also Rule 22(A)(2) of the  A.P. State and Subordinate Service Rules.

2.      The High Court reserves the right to increase or decrease  the number of vacancies after issue of this notification, if  necessary."

          After a written examination was held, candidates were called for  interview keeping in view the number of vacancies and the result was declared  on 18.3.1997.   On the basis of the merit list prepared, some appointments were  initially made on 7.4.1998.  Mohd. Siddiq Ali (appellant in C.A. No.3006 of  2001) filed Writ Petition No.35876 of 1998 challenging the selection and  appointment of some women candidates and candidates belonging to Scheduled  Castes and Scheduled Tribes.  The writ petition was dismissed in limine by a  Division Bench of the High Court (B. Subhashan Reddy and Y.V. Narayana, JJ)  on 18.1.1999 and the order passed by the Court reads as under : "This writ petition challenges the women reservation in the  matter of selection of Munsiff Magistrates as also backlog for

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Scheduled Castes and Scheduled Tribes candidates.   

       In so far as backlog of SC and ST candidates is concerned, it  is a well settled law that such a backlog is permissible under the  Constitution Scheme.  In so far as women reservation is concerned,  a Division Bench of this Court by judgment dt. 31.8.1998 in W.P.  18307/98 and batch had maintained women reservation on the  ground of the same being not challenged and that challenge could  not sustain in auxiliary proceedings.   The Division Bench,  however, has set aside the action regarding carry-forward in the  matter of women candidates. Taking a clue from the judgment of  the said Division Bench that the action in providing reservation to  women was not challenged, this writ petition has been filed, but the  same is hit by laches for the reason that the notification was issued  far back in 1996, selection process went through and selections  have been finalised and appointments have been made.

       In the circumstances, this writ petition is dismissed.   No  costs."  

       Civil Appeal No.3006 of 2001 has been filed challenging the aforesaid  order of the High Court.   

3.      Another writ petition being Writ Petition No.32021 of 1998 was filed by  S. Sreeramulu and D.D.V.S.N. Prasad challenging the same selection and  appointment of women candidates.   The writ petition was dismissed by a  Division Bench (P. Venkatarama Reddi and Bilal Nazki, JJ) on 2.12.1998 and  the order passed by the Court reads as under : "We are not inclined at this distance of time to entertain this Writ  Petition directed against the selection of candidates for the posts of  District Munsiffs which was finalised long back and pursuant to  which appointment orders were issued.   That apart, on the basis of  the information furnished by the panel counsel for the High Court,  the 1st petitioner has no chance of selection even if his contention is  accepted.   The writ petition in so far as the 2nd petitioner is  concerned, is dismissed as he has separate cause of action and he  should have filed a separate writ petition.  In fact, it is noticed that  the affidavit is filed by the 1st petitioner only.  The writ petition is,  therefore, dismissed at the admission stage."

       Civil Appeal No.3007 of 2001 has been filed challenging the aforesaid  order of the High Court.

4.      Learned counsel for the appellant has submitted that Rule 22-A(2) of the  Andhra Pradesh State and Subordinate Service Rules was wrongly applied while  making the selection to the post of District Munsiff.   He has further contended  that Rule 22-A(2) of the aforesaid Rules did not provide for a reservation to the  extent of 30% in favour of women but merely laid down a rule of preference  and, therefore, the selection made of women candidates after applying a policy  of reservation in their favour is wholly illegal. The appellant in civil appeal  no.3006 of 2001 has filed a copy of A.P. State and Subordinate Rules in the  additional documents filed in I.A. No.7 of 2005 and Rule 22-A of the Rules is  reproduced below :

"22-A.  Notwithstanding anything contained in these Rules  or Special or Ad hoc Rules \026

       (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

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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 atleast 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."

5.      Learned counsel has submitted that the aforesaid Rule came up for  consideration before this Court in Government of A.P. Vs. P.B. Vijayakumar &  Anr. (1995) 4 SCC 520 and it was held therein that the preference contemplated  by the Rule will come into operation only when the candidates obtain the same  number of marks as the Rule uses the expression "other things being equal".    This position was made clear in the judgment and the relevant part of headnote  (B) of the report on which great emphasis was laid during the course of  arguments is being reproduced below :

"Rule 22-A(2) of the A.P. State and Subordinate Service Rules  does not provide reservation for women in the normal sense of the  term.  It is a rule for a very limited affirmative action.   The  preference contemplated under Rule 22-A(2) will come into  operation at the initial stage when in the selection test for the post  in question, candidates obtain the same number of marks or are  found to be equally meritorious.  Rule 22-A(2) prescribes a  minimum preference of 30% for women, clearly contemplating that  for the remaining posts also, if women candidates are available and  can be selected on the basis of other criteria of selection among  equals, which are applied to the remaining candidates, they can also  be selected.   The phrase "other things being equal" does not refer  to these other norms for choosing from out of equally meritorious  persons.   The 30% rule is also not inflexible.  In a situation where  sufficient number of women are not available, preference that may  be given to them could be less than 30%.   The rule is thus within  the ambit of Article 15(3) and is not violative of Articles 16(2) and  16(4) which have to be read harmoniously with Articles 15(1) and  15(3)."

6.      We have considered the submission made by learned counsel for the  appellant and have examined the record.  It is rather unfortunate that what is  placed on record is the unamended A.P. State and Subordinate Rules and  arguments have been advanced on its basis.  Rule 22-A(2) of the aforesaid Rules  has undergone several amendments and this position was noticed by a Division  Bench of A.P. High Court (P. Venkatarama Reddi and R.M. Bapat, JJ) in Writ  Petition No.18307 of 1998 filed by Modh. Iqbal and Ors. wherein the same  selection of District Munsiff was challenged.   The judgment in this case was  delivered on 31.8.1998 i.e. prior to the filing of the two writ petitions in the  High Court and the same is reported in  1998 (5) ALD 590.   The amendment in  the Rules were considered in para 5 of the judgment which reads as under : "5.     Sub-rule (2) of Rule 22-A of A.P. State and Subordinate  Service Rules (hereinafter referred to as APSS Rules) as amended  by G.O.Ms.No.237 dated 28.5.1996 provided for the first time  reservation for women to the extent of 33-1/3% of posts in each  category i.e., OCs, BCs, SCs, STs, Physically Handicapped and Ex- servicemen with effect from 8.3.1996.  This was in modification of  the earlier rule of preference in favour of women.   It is laid down  by means of a proviso that if sufficient number of women  candidates are not available, the vacancies shall be filled by men.    The Rule in the same form was retained when the APSS Rules were  further amended by G.O. No.436, dated 15.10.1996.  A few months  thereafter, Rule 22-A(2) had undergone a further change by G.O.  No.65, dated 15.2.1997. The proviso to Rule 22-A(2) was deleted.    Simultaneously, there was a corresponding amendment to Rule 22  placing the women candidates on par with SCs, STs, BCs and  Physically handicapped candidates for the purposes of application

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of the procedure for limited requirement and carry forward of  vacancies.  Note (2) was added to Rule 22 by which it was provided  that the "principle of carry forward of vacancies in respect of  women shall be with effect from 28.10.1996".   Note (3) provided  for application of roster points for women candidates with effect  from 1.8.1996."

       The Bench struck down the action of the respondents in carrying forward  the unfilled vacancies reserved for women candidates, while not disturbing the  selections and appointments of women candidates already made on the ground  that Rule 22-A(2) which the High Court purported to adopt in the recruitment  notification did not contain any principle of carrying forward of vacancies  relating to women candidates.  A direction was accordingly issued that those  vacancies should be filled in by men candidates in the order of merit and subject  to the observance of roster point and the rules of reservation applicable to  Scheduled Castes, Scheduled Tribes and backward classes.  In view of the  amendment of the Rules, the contention raised by learned counsel for the  appellant has no merit at all and has to be rejected.

7.      In Civil Appeal No.3006 of 2001, the writ petition was dismissed by the  High Court on the ground that though the notification had been issued on  23.10.1996, but the writ petition wherein reservation in favour of women was  challenged was filed in November, 1998 and, therefore, the writ petition was  highly belated.  Learned counsel for the appellant has submitted that the writ  petition should not have been dismissed on the ground of laches.  In support of  his submission learned counsel has placed reliance on R.S. Deodhar vs. State of  Maharashtra AIR 1974 SC 259, wherein it has been held that the rule which says  that a Court may not inquire into belated or stale claims is not a rule of law but a  rule of practice based on sound and proper exercise of discretion and there is no  inviolable rule that whenever there is delay, the Court must necessarily refuse to  entertain the petition.   The question is one of discretion to be followed on the  facts of each case.  On the strength of the aforesaid authority it is submitted that  the High Court has erred in dismissing the writ petition on the ground of laches.    We are unable to accept the contention raised.  In the  authority cited, the  dispute related to inter se seniority of Mamlatdars/Tehsildars in the newly  constituted State of Bombay by virtue of the provisions of the States  Reorganization Act, 1956.   The inter se seniority of persons holding the same  rank has a great bearing at the stage of promotion to a higher post and in such a  situation it was held that in the facts and circumstances of the case, the writ  petition could not be dismissed on the ground of laches.  In the present case the  persons selected had already joined as District Munsiffs long back and the  challenge has been raised to their selection after the decision had been rendered  by the A.P. High Court in Writ Petition No.18307 of 1998 (Mohd. Iqbal Ahmad  & Ors. vs. High Court of A.P.) on 31.8.1998.   We, therefore, do not find any  infirmity in the order passed by the High Court.  

8.      In Civil Appeal No.3007 of 2001, the High Court has recorded a finding  that the appellant S. Sreeramulu had no chance of selection even if the  contention raised by him was accepted.  Nothing has been brought on record to  show that the reasons given by the High Court in dismissing his writ petition are  incorrect.   We, therefore, do not find any merit in the appeal.

9.      Regarding the writ petitions which have been directly filed in this Court  under Article 32 of the Constitution, it may be noted that Writ Petition (C)  No.504 of 1999 was filed on 6.11.1999, Writ Petition (C) No.22 of 2001 was  filed on 8.11.2000, Writ Petition (C) No.554 of 2001 and Writ Petition (C)  No.555 of 2001 were filed on 19.10.2001.   We are of the opinion that these writ  petitions, wherein challenge has been made to the notification issued by the  High Court on 23.10.1996, are highly belated and are liable to be dismissed on  the ground of laches.   

10.     For the reasons discussed above, all the Civil Appeals and Writ Petitions  are dismissed.

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