COMMON ORDER:

V.V.S.Rao,J.

W.P.Nos.26119, 26329 and 26330 of 2011 form one group. They are filed against the common order dated 14.09.2011 in O.A.Nos.2865 and 7253 of 2011 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (hereafter, the Tribunal). The other group of two Writ Petitions being W.P.Nos.26163 and 26307 of 2011 are filed against the common order dated 14.09.2011 in O.A.Nos.9422 of 2010 and 1520 of 2011, where a different point falls for consideration. It is however expedient to dispose of these matters by a common order.

Background

The Andhra Pradesh Public Service Commission (hereafter, the APPSC) issued notification No.39 of 2008 on 31.12.2008 inviting applications for recruitment to the posts of Group-I Services (General Recruitment). As many as 129 vacancies in 12 different departments were notified. A supplemental notification No.10 of 2009 was issued on 15.07.2009 inviting applications from 28.07.2009 to 01.09.2009 for recruitment of 198 posts including those which were notified. Further, 12 fall out vacancies of previous recruitment were also added to Group-I Services Recruitment, 2008.

The salient features of the notification are (i) a Bachelors degree/a degree or a degree in a special subject wherever required; (ii) minimum and maximum age as on 01.07.2008 being 18 to 39 or 18 to 30 depending upon the posts; (iii) the applicants shall be subjected to screening test (Objective Type) for the purpose of admitting them to main (written) examination; (iv) only the qualified applicants are to be admitted to main (written) examination consisting of six compulsory papers; and (v) the number of candidates to be admitted to the written examination would be fifty (50) times to the vacancies available at material time irrespective of the communities.

The petitioners in these cases also appeared in the preliminary examination/screening test conducted on 05.09.2010 and 25.09.2010. The results thereof were announced on 30.11.2010. In the Screening Test, 10,500 candidates were declared qualified for main examination. In view of the fact that 210 vacancies were notified, APPSC declared 10,500 candidates as qualified, which is fifty times the number of vacancies arriving at the cut-off mark of 83 out of 150. Though as many as 1,047 candidates secured 83 marks in the screening test, so as to restrict the qualified candidates to 10,500, the APPSC declared only 43 candidates, who got 83 marks as qualified, purportedly relying on para-17 of Chapter 7 of APPSC Manual. The petitioners in second group, who also got 83 marks, are aggrieved by this and filed two separate Original Applications being O.A.Nos.9422 of 2010 and 1520 of 2011. They contended that at the stage of screening test, for admitting candidates to written examination, there cannot be any further classification among the candidates who secured equal number of cut-off marks. They also contended that the Recruitment Notification or APPSC Manual would not enable the APPSC to resort to such method of excluding the candidates who got same cut-off marks in the Screening Test. Be it also noted that a few of the petitioners in the first group got more than 83 marks and others did not secure the cut-off marks.

The petitioners in the first group of cases prayed the Tribunal to direct the Government of Andhra Pradesh and APPSC to fill up 333 vacancies by direct recruitment in various categories and for further direction to consider the petitioners for appointment to various posts. The two petitioners along with another filed O.A.No.7253 of 2011 seeking a similar relief. They relied on two Government Orders being G.O.Ms.No.81, General Administration (SCR.A) Department, dated 22.02.1997 and G.O.Ms.No.424 (GAD) dated 15.06.2007 in support of their contention that the Government is under a legal duty to calculate the vacancy position meant for direct recruitees in accordance with the two Government Orders and finalise selection process only after such exercise is completed. Their contention was that if the selection for Group-I Services Recruitment, 2008, is considered for 333 vacancies instead of 210 vacancies, which were already notified, there would be more probability of the petitioners coming up for selection along with other eligible candidates. They also contended that when the Government was prompt in filling up the vacancies earmarked for promotees, the Government should fill up the vacancies by the method of direct recruitment as well. They contended that their right under Articles 14 and 16 of the Constitution of India for being considered and for equality of opportunity for public employment would be defeated if the respondents do not take into consideration the vacancies, which were allegedly existing when the APPSC issued notification No.39 of 2008.

The Government of Andhra Pradesh in Finance Department through its Deputy Secretary to Government filed counter affidavit opposing the original application. It was urged that the petitioners cannot have any enforceable right with regard to the subject matter which is within the discretion of the Government; a direction to fill all the vacant posts cannot be issued by the Tribunal and the recruitment will be done in a manner to avoid stagnation and keeping in view the interest of the present as well as future graduates to create equitable opportunity for every generation of emerging educated youth. The APPSC in the counter filed opposing the second group of writ petitions besides placing reliance on paragraph 17 of the APPSC Office Manual, relied on Pitta Naveen Kumar v Raja Narasaiah Zangiti (2006) 10 SCC 261 [LQ/SC/2006/837] in justification of excluding more than thousand candidates who secured the same cut-off mark. The Tribunal dismissed both the groups of original applications placing reliance on the Judgment of the Supreme Court in Civil Appeal No.1781 of 2006 dated 24.03.2006 wherein it was held that the State cannot be directed to calculate the substantive vacancies meant for direct recruitment and notify the same for filling them in the Group-I Recruitment 2008 and that the Tribunal cannot sit in Judgment over the policy decision taken by the State. In the other group of original applications, the Tribunal relied on Pitta Naveen in upholding the action of the APPSC excluding the candidates for the same cut-off mark for appearing in the written examination.

Submissions and Issues

M/s.D.V.Sitarama Murthy, Senior Counsel, J.R.Manohar Rao, J.Sudheer and P.Ratnam appeared for the petitioners. They would contend that when the fundamental right for equal opportunity to public employment under Article 16(1) is breached, the petitioners can seek judicial review of the decision of the Government in the matter of estimation of vacancies; the State as an employer cannot be permitted to resort to adhocism in making appointments and depart from constitutionally permissible mode of direct recruitment and resort to only recruitment by promotion denying the right of the citizens who are aspirants to Group-I posts; when the Government lays more emphasis in the method of appointment by promotion ignoring the method of direct recruitment to public posts a Mandamus can be issued to enforce their fundamental right under Articles 14 and 16(1) of the Constitution of India and the judicial review of estimation of vacancies is not barred. They would further contend that the Government themselves issued orders in G.O.Ms.No.81, dated 22.02.1997 G.O.Ms.No.424, dated 15.06.2007 to notify the fall out vacancies in the next recruitment and also provided the method and manner of estimating the vacancies meant for direct recruitment but these instructions were given a go-by while giving clearance to APPSC to proceed with selections for 210 vacancies only. The petitioners would further contend that having arrived at the cut-off mark of 83 for the purpose of determining the candidates qualified for written examination, the exclusion of all those candidates who got the same cut-off mark would not only contravene Articles 14 and 16 of the Constitution and is arbitrary. Reliance is placed on K.V.Subba Rao v Government of A.P. (1988) 2 SCC 201 [LQ/SC/1988/142] : AIR 1988 SC 887 [LQ/SC/1988/142] , All India SC & ST Employees Association v A.Arthur Jeen (2001) 6 SCC 380 [LQ/SC/2001/979] : AIR 2001 SC 1851 [LQ/SC/2001/979] , Food Corporation of India v Bhanu Lodh (2005) 3 SCC 618 [LQ/SC/2005/267 ;] : AIR 2005 SC 2775 [LQ/SC/2005/267 ;] , K.K.Tiwari v Union of India (2008) 5 SCC 741 [LQ/SC/2008/939] , Rakhi Ray v High Court of Delhi (2010) 2 SCC 637 [LQ/SC/2010/151] : AIR 2010 SC 932 [LQ/SC/2010/150] , State of Orissa v Rajkishore Nanda (2010) 6 SCC 777 [LQ/SC/2010/594] : AIR 2010 SC 2100 [LQ/SC/2010/594] , East Coast Railway v Mahadev Appa Rao (2010) 7 SCC 678 [LQ/SC/2010/633] , and Pitta Naveen.

Sri P.Naveen Rao, Government Pleader for Services-I and Sri Srinivas Sivaraj, Government Pleader for Services-II, on instructions made the following submission. In the absence of any challenge to notification Nos.39 of 2008 and 10 of 2009 the petitioners cannot seek the relief to notify the vacancies when the process of recruitment is ongoing process. The vacancies that would arise after issue of notification need not be considered and such vacancies cannot be taken into reckoning for Group-I Selection 2008. Even if the vacancies are estimated by the Government as per the policy orders, it is always open to them to proceed with the selection for all the estimated vacancies or the required number of vacancies depending on the exigency of services. The petitioners have no right that can be enforced under Article 226 of Constitution of India for making recruitment as per the statutory rules and administrative instructions with reference to the vacancies notified would amount to denial of equality of opportunity to public employment guaranteed under Article 16(1). If the subsequent vacancies are also reckoned, it would amount to depriving the opportunity to those candidates who were not eligible when the notification was issued in 2008 but became eligible subsequently. It is also their submission that the petitioners having appeared in the screening test cannot be permitted to turn around and raise a dispute with regard to the estimation of vacancies when they are not qualified for main examination. They rely on the State of Haryana v Subash Chander Marwaha (1974) 3 SCC 220 [LQ/SC/1973/190] , Shankarsan Dash v Union of India (1991) 3 SCC 47 [LQ/SC/1991/253] : AIR 1991 SC 1612 [LQ/SC/1991/253] , J&K Public Service Commission v Dr.Narinder Mohan (1994) 2 SCC 630 [LQ/SC/1993/1054] : AIR 1994 SC 1808 [LQ/SC/1993/1054] , Union Public Service Commission v Gaurav Dwivedi (1999) 5 SCC 180 [LQ/SC/1999/562] : AIR 1999 SC 2137 [LQ/SC/1999/562] , Jitendra Kumar v State of Haryana (2008) 2 SCC 161 [LQ/SC/2007/1515] , High Court of Rajasthan v Veena Verma (2009) 14 SCC 734 [LQ/SC/2009/1392] : AIR 2009 SC 2938 [LQ/SC/2009/1392] , Amlan Jyoti Borooah v State of Assam (2009) 3 SCC 227 [LQ/SC/2009/162] , Manish Kumar Shahi v State of Bihar (2010) 12 SCC 576 [LQ/SC/2010/581] and Vijendra Kumar Verma v Public Service Commission, Uttarakhand (2011) 1 SCC 150 [LQ/SC/2010/1103] .

The standing counsel for APPSC submits that in determining 10,500 candidates for written test the instructions issued by the Government in G.O.Ms.No.570, General Administration (Services.A) Department, dated 31.12.1997, Rules 4 and 23 of APPSC Rules of Procedure, 1998, paragraph 17 of Chapter VII of APPSC Office Manual were taken into consideration and the decision is not vitiated by arbitrariness. Placing reliance on Pitta Naveen, the counsel would submit that under no circumstances, the candidates to be admitted to written examination can exceed 50 times the number of vacancies and therefore, APPSC put a ceiling at 10,500 by adopting a rationale and reasonable method. In the said process, if some candidates who secured the cut-off mark of 83 are excluded, the same does not violate Article 16 of the Constitution of India.

The background and the rival submissions made in the case would throw up the questions relating to judicial review and justiciability; the legal duty and the legal right of the Government and the petitioners; and the principles of estoppel that need to be addressed.



Judicial review & Justiciability

Judicial review of the legislative and administrative action is a basic feature of the Constitution of India. The Constitutional Courts cannot be divested of such power even by an amendment to the Constitution and no legislation can take it away although by appropriate legislation, the powers of judicial review can be, in certain areas, endowed in a separate specialized Tribunal to provide expeditious and effective access to justice. Even in such a case, it is the Supreme Court and the High Courts, which would lord over the legislative, administrative and judicial (Tribunal) matters. So to say in democracy governed by a written Constitution, the concept of unreviewable decisions of any public authority does not exist.

Reviewability of a decision by a public authority is different from justiciability. It is well settled, in public law, that all decisions of public authorities are not justiciable. The decisions especially in relation to sovereign functions and in exercise of prerogative powers of the State are beyond purview of the Courts scrutiny. The Court simply lacks expertise to review certain decisions. In certain other areas, the Constitution specifically entrusts functions to the executive. Unless and until decisions directly impede the enjoyment of any fundamental right, the Court would be slow to presume justiciability of such decisions. This equally applies to public employment.

The enjoyment of the Constitutional guarantee of equality of opportunity is subject to various facets of equality clause. The theory of classification, the theory of rationality and unarbitrariness and the theory of affirmative action would also apply to the right entrenched in Article 16 of the Constitution. The enforcement of the right by the citizen and the duty of the State to protect such right so to say the legal right and the legal duty are also subject to the Constitutional limitations. In the areas of providing public employment, making selections, stipulating conditions of service, control and management of public service and giving of post retiral benefits, the State has to act within the four-corners of rule of law ensuring equality and equal opportunity not only to the citizens of today but keeping in view the interest of citizens of tomorrow as well.

Right to public employment is an important socio-economic right recognized by the International Covenant on Social, Economic and Cultural Rights, 1966. It is a new form of property. It is a new form of wealth in which all the citizens have equal right of opportunity to share (APSRTC v Labour Court AIR 1980 AP 132 [LQ/TelHC/1979/270] and State of Maharashtra v Chandrabhan AIR 1983 SC 803 [LQ/SC/1983/163] ). Even then the Courts role to scrutinize the policy decisions of public employment, is very limited. How to run the Government How many departments the Government should have What are the functions to be entrusted to each department Who should be selected to man in those posts in the department How to verify the norms for determining the requirement in each department When and how to make recruitment are all matters which are in the exclusive domain of the executive organ of the State. The Court has no say nor in exercise of powers of judicial review usurp the role of the executive creating an imbalance in the Constitutional functioning. Of course, if any law is violated or any Constitutional provision is ignored or a decision is not bona fide, while dealing with some of the above matters, the Court can always scrutinize the decision. It is not strict scrutiny. The review is only differential review to see that all relevant factors are considered and no irrelevant factor influenced the decision-making. In that perspective, in the matter of public employment though judicial review is permissible, not all the decisions of the Government are justiciable, even if such decisions are taken pursuant to a Statute, the rules made under the Article 309 of the Constitution or an executive policy. Any interference in such decisions would create chaos in the Constitutional governance. In the larger interest, in the area of public policy, all the decisions are left to executive, the Court playing the role of an impartial arbiter to ensure equality of opportunity to all the citizens in public employment. As we presently show the estimation of vacancies for the purpose of selection process as a prelude for recruitment to public employment is subject to limited review only.



In this regard, a reference may be made to Government of Orissa v Haraprasad Das (1998) 1 SCC 487 [LQ/SC/1997/1533] : AIR 1998 SC 375 [LQ/SC/1997/1533] , State of Orissa v Bhikari Charan Khuntia (2003) 10 SCC 144 [LQ/SC/2003/961] : AIR 2003 SC 4588 [LQ/SC/2003/961] , Bhanu Lodh and Jintendra Kumar, wherein it was held that the bona fide and unarbitraryState action compliant with Article 14 of the Constitution of India is not amenable to judicial review. We may however hasten to add that the constitutional guarantee of equality of opportunity of public employment casts an obligation on the constitutional Court to review any decision of the Government which is allegedly tainted with mala fide exercise of power.

Legal Duty and Legal Right

In order that a mandamus may issue to compel the authority to do something, it must be shown that the statute imposes a legal duty on that authority (Rai Shivendra Bahadur v Nalanda College AIR 1962 SC 1210 [LQ/SC/1961/401] ). It is also settled that a citizen cannot seek to enforce a right through mandamus unless it is shown that he has a legal right either under the Constitution, the Statute or any other instrument which has force of law (Subash Chander Marwaha and Director of Settlements v M.R.Appa Rao (2002) 4 SCC 638 [LQ/SC/2002/402] : AIR 2002 SC 1598 [LQ/SC/2002/402] ). The petitioners herein claim the right to compel the Government to notify all the vacancies before the completion of selection process so that their chances may improve. The right is with reference to a legal duty and therefore, it is for the petitioners to show that the Government have duty either under the Constitution or the statute, to consider not only the vacancies which were published in the first notification as well as supplemental notification and also those vacancies which existed at or about the time of issuing those notifications or which arose subsequently. The creation and/or abolition of civil posts is the prerogative of the executive organ of the State. The Court cannot compel the Government to create posts (S.S.Dhanoa v Union of India (1991) 3 SCC 567 [LQ/SC/1991/325 ;] : AIR 1991 SC 1745 [LQ/SC/1991/325 ;] and Commissioner andCorporation of Madras v Madras Corporation Teachers Mandram (1997) 1 SCC 253 [LQ/SC/1996/1934 ;] : AIR 1997 SC 2131 [LQ/SC/1996/1934 ;] ). There is no legal duty upon the State Government either to create a post or to take up recruitment only by a particular method; by their own choice the Government can decide as to when and how the posts are to be filled up and if so, how many of them are to be filled up. There is no legal principle which requires the State to create jobs in public employment, to ensure the welfare of the citizens. If peoples welfare can be achieved by other means, the State can do so without ignoring Directive Principles of State Policy.

In Shankarsan Dash, constitution Bench ruled that the State is under no legal duty to fill up all or any other vacancies and that as long as the decision not to fill up is bona fide, they cannot be faulted. Even if there are vacancies, the Government need not immediately notify the vacancies as soon as they arose. It is open only to notify the vacancies to keep in the knowledge of eligible persons (Dr Narinder Mohan). The judicial intervention is permissible only when the acts of omissions and commissions on the part of the State violate a legislation covering only one or other field of public employment. It is always open to the Government to decide the number of civil posts required to perform given governmental functions. If they decide to recruit the citizens, equality of opportunity should be provided to all. Even if large number of required vacancies is estimated, all the citizens who fulfil the eligibility criteria cannot claim the fundamental right under Article 16(1) of the Constitution. It is only when the State takes up the recruitment process either by itself or through an agency like Public Service Commission, all the eligible candidates can exercise the right to equality of opportunity to public employment.

It is conclusively shown that there is no legal duty on the Government, the petitioners cannot have any legal right to enforce the performance of such legal duty. Shankarsan Dash principle that a candidate who is applicant to a post does not acquire an indefeasible right to be appointed is axiomatic. The Government can issue a notification, commence selection process and can withdraw the selection midway or after completion of the process. Even if the selection process is carried to its logical end, the Government can fill up only some of the notified vacancies withholding others for various reasons (Subash Chander Marwaha, Shankarsan Dash, Dr Narinder Mohan, Arthur Jeen, Bhanu Lodh andJintendra Kumar).

In the absence of any legal right, the judicial review Court ordinarily cannot issue any direction, unless the appointment is withheld for mala fide reasons (Jitendra Kumar). Whether it is competent for the appointing authority to recruit more number of candidates than notified either by resorting to the method of maintaining a waiting list or by declaring that a particular selection for recruitment would also be for the vacancies that would arise subsequently It is no more res integra. In Rakhi Ray, followed in Rajkishore Nanda - a three Judge Bench of the Supreme Court reiterated the law thus:

It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India v Ishwar Singh Khatri 1992 Supp (3) SCC 84, Gujarat State Deputy Executive Engineers Association v State of Gujarat 1994 Supp (2) 591, State of Bihar v Secretariat Asstt. Successful Examinees Union 1986 (1994) 1 SCC 126, Prem Singh v Haryana SEB (1996) 4 SCC 319 [LQ/SC/1996/951] and Ashok Kumar v Banking Service Recruitment Board (1996) 1 SCC 283 [LQ/SC/1995/1101] )

Therein it is also held that any appointment made beyond the number of vacancies advertised is without jurisdiction, a nullity, inexecutable and unenforceable in law being violative of Articles 14 and 16 of the Constitution of India. In case the vacancies notified stand filled up, the process of selection comes to an end. There is no quarrel among the counsel about the legal position. The petitioners however would contend that the Government issued policy guidelines for estimating the vacancies for direct recruitment; these guidelines were followed more in breach; and therefore, they have an enforceable right to compel by mandamus to notify all the vacancies which allegedly estimated or existed prior to the issue of the two notifications. The Government Pleader for Services-II has placed before this Court the correspondence between the Government and the APPSC prior to the issue of two notifications in 2008 and 2009 also the communication sent by the Government in 2011 for notifying subsequent Group-I vacancies. We shall deal with these documents before adverting to petitioners contentions.

The necessity for issuing G.O.Ms.No.275, Finance & Planning dated 14.12.1995 is contained in the said order itself. All the Heads of the Departments (HoDs) and offices were sending the requisitions to APPSC which resulted in over-manning and accentuating the problem of surplus manpower in the Government. Therefore, instructions were issued to all the HoDs to send requisitions for appointment to the full time or part-time, contingent or any other category to the Surplus Manpower Cell (SMPC) in Finance Department. They shall verify whether the vacancies in the reported category could be filled up with the available surplus manpower. In the event of non-availability of required personnel, the Government would accord clearance and send required requisitions to APPSC. The same order also advised APPSC, its Chairman and Members not to accept any requisitions for any vacancy unless it is received from the Finance and Planning Department. This Order gave finality to the number of vacant posts cleared by SMPC which even according to the petitioners is bound to be implemented by the APPSC and the Government in the matter of recruitment.

The Government Order vide G.O.Ms.No.81, General Administration Department, dated 22.02.1997 deals with the selection of candidates against the resultant vacancies of non-joining/relinquishment of selected candidates. Before the issue of said Order, the list of selectees sent by the APPSC was to be followed for a period of one year from the date of its publication and the appointed candidates were required to join the duty within forty-five days from the date of dispatch of the appointment order and in case the appointees do not join, the APPSC may allow other candidates against these non-accepting/non-joining/relinquished vacancies duly picking up the candidates from out of waiting list. The Supreme Court in A.V.Bhogeswarudu v APPSC JT 1989 (4) SC 130 and Gujarat State Deputy Executive Engineers Association held that waiting list would be operative only in the contingency, and that the candidates in the waiting list have no vested right for being appointed. Therefore, the Government in consultation with the APPSC dispensed with the system of waiting list and decided to go on for fresh recruitment. Therefore, the Government ordered that the list of candidates approved/selected by APPSC shall be equal to the number of vacancies only and that all the fall out vacancies if any due to relinquishment or non-joining of selected candidates shall be notified in next recruitment. It is the contention of the petitioners that in the recruitment, which took place prior to issue of notification in 2008, there were number of fall out vacancies and they were not added to the vacancies in Notification Nos.39 of 2008 and 10 of 2009.

The G.O.Ms.No.275 was followed by G.O.Ms.No.176, dated 28.4.1997 which deals with estimation of vacancies for the purpose of direct recruitment. In G.O.Ms.No.424, dated 15.6.2007, earlier instructions were again modified and revised orders were issued. While reiterating the policy in G.O.Ms.No.275 of administrative departments consulting the Finance (SMPC) Department for clearance, the Government ordered that the vacancies meant for direct recruitment shall be estimated for the period covering from 1st September to 31st August of succeeding year and that under no circumstances the vacancies earmarked for direct recruitment shall be filled by other methods, the Government vide para 2(viii) clearly ordained that, in cases where further estimates of direct recruitment vacancies are made either by the administrative department or Finance (SMPC) department such vacancies shall be separately notified and recruitment taken afresh.

A careful perusal of the order in G.O.Ms.No.424 would show that ordinarily the vacancies for direct recruitment shall be estimated for the period from 1st September to 31st August of succeeding year. If such vacancies are cleared for recruitment by SMPC, APPSC will proceed with the recruitment. After the recruitment process is started if the administrative department comes forward with further estimates, those vacancies shall be notified separately for fresh recruitment. This order does not anywhere enable the Government or APPSC to repeatedly add-on the estimated vacancies when once the process of estimation for the given period is complete and vacancies cleared for recruitment by APPSC. When APPSC issued 2008 notification, 129 vacancies were notified. Subsequently on 27.7.2009, a supplemental notification of 2009 was issued. In view of para 2 (viii) of G.O.Ms.No.424 which mandates a separate recruitment notification, while issuing notification No.10 of 2009, the Government specifically relaxed the orders in G.O.Ms.No.424. Reference to the following portion of the notification No.10 of 2009 would make this clear.

PARA 1:

Applications are invited On-line through the proforma Application available on WEBSITE (www.apspsc.gov.in) from 29/07/2009 to 01/09/2009 for recruitment to the posts included in Group-I Services Recruitment2008.

The Commission has dispensed with the sale of applications through HPOs/Sales Counter of Commissions office. The desirous eligible Candidates may apply ON-LINE by satisfying themselves with the terms and conditions of this recruitment. The details are as follows:-

Keeping in view, the actual requirement with reference to the nature of work and activities of the Departments and also the overall financial implications on the Government exchequer and in relaxation of the orders issued in G.O. Ms. No. 424 GA (Ser.A) Dept., dt. 15/06/2007, the Government in Finance Department have accorded permission for filling up of additional vacancies, in addition to the vacancies already notified vide Notification No. 39/2008, dt.30/12/2008 vide D.O. Letter No. 13860-B/737/A3/SMPC/2008-3/1, dt.19/01/2009. The Government have also issued orders duly relaxing the upper age limit to these additional posts up to 39 years (other than uniform services) vide G.O. Ms. No. 335 GA (Ser.A) Dept., dt. 04/07/2009.

(emphasis supplied)

The first petitioner in W.P.No.26330 of 2011 applied and obtained information from the Public Information Officer, Finance (SPMC) department, regarding vacancy position under direct recruitment quota for Group-I Services. Placing emphasis on this, the Counsel for the petitioners would contend that the additional vacancies which did not form part of the two recruitment notifications were very much in existence even by the date of their issue. This aspect involves two points for consideration: first, whether the allegation of the petitioners is correct, and secondly, even if it is correct does it cast a legal duty on the Government and APPSC to conduct selection to those vacant posts also The Government Pleader for Civil Services-II appearing for Finance department has placed before this Court, three documents which are relevant for the point.

First of these three is the communication of Principal Finance Secretary (R&E) being D.O. Letter No.13860-B/737/A3/SMPC/2008-3, dated 02.6.2008, addressed to the Secretary of APPSC informing Government decision to fill up 120 posts of Group-I services, keeping in view all the requirements with reference to the nature of work and activities of the department and also over all financial implications on Government exchequer. The latter was requested to take appropriate steps for filling up those vacancies. Second, by subsequent letter the number of Group-I Services was increased by 78. Notification Nos.39 of 2008 and 10 of 2009 were issued after receiving these communications from the Government. Third is a set of nine letters from the Finance Secretary (R&E) addressed to the Secretary of APPSC. By these letters, the Government requested to take appropriate steps for filling up posts in various departments. All these communications emanated from the Secretariat in January, March, April, July and August, 2011 after announcement of the result of the screening test for Group-I recruitment 2008. The details of these vacancies which were estimated to be the vacancies in respect of which the Government granted clearance were furnished to the first petitioner in W.P.No.26330 of 2011 vide letter dated 03.9.2011. In the said communication, it was clearly mentioned that the Finance department issued clearance to APPSC for various posts for filling up under Group-I services for new notification during 2010-2011. This evidence would belie the contention of the petitioners that these 200 or more vacancies existed even as on 30.12.2008 when notification No.39 of 2008 was issued. There is no dispute about the legal position that the vacancies which arise after issue of the notification do not confer any right on the candidates for being considered against those vacancies also (Gujarat State Deputy Executive Engineers Association).

The position can also be examined from a different perspective. Indisputably, after issue of the orders by the Government being G.O.Ms.No.275, dated 14.12.1995, G.O.Ms. No.81, dated 22.2.1997 and G.O.Ms.No.424, dated 15.6.2004, the APPSC is empowered to initiate selection process only after receiving clearance from the Government. After receiving such clearance vide letter dated 03.6.2008, APPSC issued two notifications. They could not have issued the notification or proceeded with selection in respect of other vacancies for which the clearance was accorded by the Government only after announcement of the results of the screening test. If those vacancies cleared in 2011 are also treated as if they were in existence as on the date of issue of the first notification in 2008, it would be unconstitutional as it would deny the right under Articles 14 and 16 for those candidates who become eligible subsequently. The G.O.Ms.No.424, which stipulates the method and manner of estimating the vacancies for direct recruitment would be operative only prior to issue of notifications. It does not contemplate nor lay down any method of increasing already notified vacancies as estimated in a given year. Indeed, Paragraph 2(viii) is very clear that all the vacancies which arose subsequent to the exercise undertaken for estimating the vacancies during the period from 1st September to 31st August of succeeding year will have to be notified for a fresh recruitment. Those vacancies cannot be reckoned in the selection process already notified.

If the petitioners plea is accepted it would result in depriving the large number of aspirants for Government posts. When a notification is issued only those candidates eligible in all respects like educational qualifications, age etc., would be entitled to apply for being considered against the notified vacancies. Perhaps some of them would be age barred in respect of vacancies which may arise after sometime. In respect of those future vacancies also if the applicants with reference to earlier notification are allowed to compete it would deprive those candidates who would acquire qualifications subsequently. The Government is, therefore, entitled, depending on the administrative exigencies to resort to direct recruitment either for all the vacancies that exist at a given point of time or only for a few of them and decide to fill up the balance vacancies subsequently as and when need arises. The Court must avoid such interpretation of the policy.

The law is well settled that recruitment to more number of vacancies than advertised by the notification is clearly impermissible and unconstitutional. A reference is already made supra in this regard to the two decisions of the Supreme Court in Rakhi Ray and Rajkishore Nanda. In the former the Supreme Court summarized the law that any appointment made beyond the number of vacancies advertised is null and without jurisdiction, being violative of Article 14 and 16(1) of the Constitution. It was also held that in case the vacancies notified stand filled the process of selection comes to an end and the filling up of future vacancies is not permissible under law. Needless to say, the law declared by the Supreme Court is binding on all the authorities. This Court cannot, therefore, issue a Mandamus directing the Government and APPSC to conduct selection for those vacancies which were estimated and cleared by the Government for recruitment subsequent to issue of notifications in 2008 and 2009. At this stage, we may refer to the order of the Supreme Court in State of Andhra Pradesh v K.Ananda Reddy Civil Appeal No.1781/2006, dated 24.3.2006and its background as well.

In 1999, APPSC issued notification No.10 of 2009 inviting applications for direct recruitment to various Group-II services in 27 departments. During on-going process vacancies were increased. The original applications were filed by the candidates. By an order dated 21.11.2011 in O.A.No.7443 of 2000 and batch, the learned Tribunal directed the Government to act with due rationale and take up recruitment process at the earliest after the surplus man power is adjusted. The learned Tribunal declined to give a direction to the Government to fill up the vacancies which arose subsequently. The Division Bench in K.Ananda Reddy v APPSC 2006 (3) ALD 803, modified the order of the Tribunal giving various directions. By direction (g) thereof, the Government were directed to undertake review of vacancies every year and fill up the posts meant for direct recruitment in accordance with the Rules. In States appeal, the Supreme Court set aside direction (g) as unsustainable. We quote below the brief order of the Supreme Court reads as under.

The appellants herein are aggrieved by and dissatisfied with the two directions issued by the High Court which are as under.

(f) It is also desirable that the Government takes appropriate and expeditious action to fill up the balance direct recruitment posts other than those which are notified under Notification No.10 of 1999 which arose after 30.08.2000 in the posts covered by Notification No.10 of 1999 and other posts not covered by the Notification which continued to be unfilled for several years at the earliest possible time.

(g) The Government shall undertake review of vacancies every year and fill up the posts meant for direct recruitment in accordance with rules so as to maintain the ratio under the relevant Service Rules.

Learned counsel appearing on behalf of the appellants brings to out notice that so far as relief (f) is concerned, the same has been complied wherefor out attention has been drawn to an additional affidavit filed on behalf of the appellants wherein it has been stated that pursuant to the police of the State several notifications have been issued, the details whereof have been stated in para 8 thereto. In view of the said notifications issued by the State, the relief (f) granted by the High Court stood substantially complied with and as such to that extent the impugned judgment need not be interfered with by us.

However, so far as relief (g) granted by the High Court is concerned, we are of the opinion that the same is wholly unsustainable. It is now well settled that it is for the State to fill up the posts. No writ of in the nature of Mandamus can be issued directing the State to fill up the posts. As and when, however, posts are filled up, the same must be done in accordance with the Rules. We are, therefore, of the opinion that the impugned direction as contained in para (g) aforementioned cannot be sustained and the same is set aside accordingly. The appeal is disposed of on the above terms.

On reading the Judgment of the Division Bench in Ananda Reddy, the order of the Supreme Court partly reversing it, there is no scope for any argument that the Court can give mandamus directing the competent recruiting agency to go on adding the vacancies to be considered in the selection process which was already notified. The law is heavily loaded against any such proposal. The Government has power to make appointments either by direct recruitment, promotion or on contract basis. If the Government to meet the situation temporarily resorts to promotion and does not take up the direct recruitment selections for various reasons, the same does not change the situation. The qualified and eligible unemployed have no right to compel the Government to take up the direct recruitment nor they have any locus to prevent the Government from running the administration by making temporary promotions.

The Government in their order G.O.Ms.No.81, dated 22.02.1997 scrapped the system of maintaining waiting list. In the same order, they have also directed that the fall out vacancies due to relinquishment/non-joining of selectees shall be notified in next recruitment. The petitioner in W.P.No.26329 of 2001 raised a contention that the Government and APPSC failed to add and added only 12 fall out vacancies which is illegal. In the counter affidavit filed before the Tribunal, a statement was made that all non-joining vacancies of earlier recruitment numbering 12 were added. This statement remained uncontroverted and unrebutted. Further, the sanding counsel for APPSC submits that the total number of 210 vacancies also included 12 fall out vacancies of previous recruitment. We do not have any reason to doubt the statement nor are we willing to countenance the submission of the counsel for petitioners.

Plea of Estoppel

The acquiescence, estoppel and waiver describe the situation where a person is precluded from asserting a right, seeking remedy to enforce such a right; or willingly accepts the non-existence of the right or non-existence of the right to enforce it. Estoppel is a bar that prevents one from asserting to claim or right that contradicts what one has set or done before what or what has been legally established as true (Blacks Law Dictionary, 8th edn., p.589). The Government Pleaders would press this contending that the petitioners did not challenge the notifications inviting applications under direct recruitment; they did not raise any objection about vacancies notified; they participated in the screening test; and only after the declaration of results of the screening test on 30.11.2010, they filed the Original Applications. It is their contention that when a selection process is initiated in accordance with the statutory rules, those candidates, who participated cannot turn around and challenge any aspect of the selection process.

In their reply, the counsel would submit that estoppel does not operate because as per recruitment notification, selection process does not commence with the screening test. They rely on para-5 of notification No.10 of 2009. It is no doubt true, as per paragraph 5 (1) of the notification, only such of the applicants who are admitted to main examination will be subject to the process of selection. The issue, therefore, is whether the applicants who appeared for screening test are precluded from questioning the selection process only for those vacancies which were notified and whether they cannot seek a Mandamus directing the Government to proceed with the selections for all the vacancies which, according to the petitioners, exist.

In Manish Kumar Shahi v State of Bihar, a candidate who participated in the selection for the post of Civil Judge (Junior Division) questioned the Rules on the ground that the marks prescribed for viva voce test were excessive and contrary to the law laid down by the Supreme Court. The Division Bench of Patna High Court rejected the challenge. The Supreme Court, while affirming the High Court, observed that the candidate knowing fully well that more marks have been earmarked for viva voce test took part in the process of selection and therefore, he is not entitled to challenge this criteria or process of selection by invoking the jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the recruiting agency. The Supreme Court relied on Amlan Jyoti Borooah v State of Assam, Madan Lal v State of J & K 1995 (3) SCC 486 [LQ/SC/1995/195] , Dhananjay Malik v State of Uttaranchal (2008) 4 SCC 171 [LQ/SC/2008/602] and K.A.Nagamani v Indian Air Lines (2009) 5 SCC 511 [LQ/SC/2009/1018] .

In Amlan Jyoti Borooah v State of Assam, the appellant took part in the selection process for the post of Sub-Inspector of Police. The selection committee short listed the candidates in order of merit in which the appellant was placed at Sl.No.750. After conducting physical ability test, 84 candidates were appointed, which was challenged before the Guahati High Court. The learned Single Judge set aside the appointment of 54 candidates on the ground that all the candidates are not judged by a uniform process and that those appointed and those left out were assessed by two different yardsticks. The Division Bench, however, while upholding the appointment of 54 candidates, directed to fill up the remaining 14 posts by holding physical and medical tests. It may be mentioned that, as per the advertisement, the candidates were required not only to qualify written examination but also the physical ability test. During the pendency of the proceedings, the appellant took the physical ability test, but could not clear it. However, he contended that the physical ability test ought to have been conducted prior to the written test. Rejecting the plea, the Supreme Court held that, the appellant having accepted the change in the selection procedure sub silentio by not questioning the appointments of the selected candidates, cannot be permitted to turn round and contend that the procedure adopted was illegal and that the appellant is estopped and precluded from doing so.

In Vijendra Kumar Verma v Public Service Commission (2011) 1 SCC 150 [LQ/SC/2010/1103] , the Supreme Court relied on G. Sarana (Dr.) v University of Lucknow (1976) 3 SCC 585 [LQ/SC/1976/244] and held that the candidate who participated in the selection process cannot challenge the validity of the said selection process after appearing in the said selection process and taking opportunity of being selected.

In view of the decisions of the Supreme Court in this area, we are inclined to accept the submission of the Government Pleaders. The submission that the selection process would commence with the main written examination and therefore, the petitioners can raise a plea is devoid of any merit. Unless and until a person is qualified in the screening test, he cannot be admitted to main examination. The selection process involves issuing a notification, inviting applications, conducting screening test, conducting main examination and holding viva voce. Various stages are interdependent and unless a candidate succeeds at one stage, he cannot go to the second stage. The petitioners never chose to challenge the notification itself. They applied for being considered only for those posts which were notified. After finding that they are not qualified (except three petitioners 1, 2, 3 in W.P.No.26119 of 2011), they now choose to challenge the selection pleading that if the number of vacancies goes up, they would also have a chance of appearing in the written examination. If the number of vacancies goes up applying the ratio of 1:50, the number of candidates to be declared as qualified for the written examination would increase in which case, the petitioners might become eligible for main examination. When the petitioners filed the Original Applications taking such a plea after appearing in the screening test, they are certainly estopped raising it and the jurisdiction under Article 226 of the Constitution of India cannot be exercised in their favour.

Before we take up the next issue, we may sum up the conclusions as follows. The State has no legal duty to fill up all the vacancies that are available in public service. Correspondingly the persons who aspire for those posts or the pesons who participated in the selection and included in the selection list have no right to seek a direction from the Court to fill up all the vacancies available as on the date of completion of selections. The Court cannot issue a mandamus to the executing Government to fill up the posts only to increase chances of the candidates competing in the selection pursuant to a notification issued earlier. The Government estimated the number of vacancies in Group-I service correctly, pursuant to which APPSC issued notifications Nos.39 of 2008 and 10 of 2009. The petitioners failed to prove that there were additional vacancies existing prior to issue of those notifications nor are able to show that the Government and APPSC are under a duty to take into consideration all the vacancies which arose subsequently. The law does not permit the recruiting agency to fill up more vacancies than advertised. Any such exercise would be certainly violative of Articles 14 and 16 of the Constitution of India. In any event of the matter, the persons who applied pursuant to recruitment notification have no right in law to compel the State to take up recruitment for all the vacancies or complete the selection process. The petitioners are estopped from invoking the remedy for any redressal in this regard. The decision of the Tribunal, therefore, cannot be flawed nor does it suffer from any error apparent on the face of record.

Plea of Discrimination

Articles 14 and 16(1) of the Constitution of India injunct the State from discriminating on the basis of religion, race, caste, descent, place of birth, residence or any of them in the matter of public employment. The equality among equals is a norm and equality among unequals is a sin. If equals are treated unequal, the Constitution frowns and pounces. The classification of persons and things for the purpose of law enforcement is permissible provided such classification is sustainable on intelligible differentia and has justifiable and rational nexus to the object to be achieved by such classification. The principle is so deeply woven and embedded in the Indian Constitutional Law that it does not require reference to precedents. APPSC arrived the cut-off mark of 83 out of 150 and qualified 10,500 candidates to be admitted to main (written) examination. This was on the basis of 1:50 i.e., fifty times the number of vacancies notified (210 x 50 = 10,500). In the process, APPSC left out 1004 candidates who also secured the cut-off mark of 83. The question is does it amount to hostile discrimination.

The Government Order being G.O.Ms.No.103 dated 03.02.1967 and G.O.Ms.No.570, dated 31.12.1997 relate to programme of selection to the categories of posts grouped under Group-I. Inter alia G.O.Ms.No.570 prescribed the syllabus and Scheme of examination. As per pargraph 2 of Annexure II of G.O.Ms.No.570, there will be a screening test (objective type) for shortlisting the number of candidates to be admitted in the written examination and the number of candidates to be admitted to written examination would be 50 (fifty) times the total number of vacancies available at material time irrespective of communities. The same finds place in Annexure II (Scheme of Examination) to Notification No.39 of 2008 and Supplemental Notification No.10 of 2009, which reads as under.

There will be 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 for the Written Examination (Conventional type) would be fifty times to the vacancies available at material time irrespective of communities.

While short-listing the candidates, the APPSC adopted the following method. All the candidates who got the same cut-off marks were bracketed; they were ranked as 1, 2, 3 etc., within the bracket according to age; and the oldest among them were ranked higher than those who are younger. In this process, presumably APPSC found 10,457 candidates secured the same cut-off marks. As fifty times of 210 vacancies would be 10,500, short fall of 43 candidates were selected from among the 1047 candidates who secured 83 marks considering the oldest as high ranking candidates. This is sought to be justified placing reliance on Paragraph 17 of Chapter II of APPSC Manual, Rules 4 and 23 of the APPSC Rules of Procedure, 1998 and the decision of the Supreme Court in Pitta Naveen.

After giving deep and anxious consideration to the submission, we are convinced that all the left out candidates who got 83 cut-off mark are discriminated and there is clear violation of Articles 14 and 16 of the Constitution of India. We are aware that Articles 16(2) does not prohibit the discrimination on the ground of age but when eligibility criteria is same and all the candidates between the age group of 18 to 30 or 18 to 39 are classified as one, the mini classification again based on the age at the stage of screening test which is only meant for short-listing the candidates is certainly impermissible classification. As per G.O.Ms.No.570 as well as notifications, the screening test is for the purpose of short-listing candidates for main examination who will be subjected to process of selection. At the stage of screening test, therefore, the question of inter se ranking does not arise. At that stage, excluding them would amount to denying the equality of opportunity to public employment prohibited by Article 16(1) of the Constitution of India. Paragraph 17 of Chapter VII of APPSC Manual reads as under.

17. Ranking List.- After the marks are awarded in the oral test the candidates are arranged in the order of merit i.e., according to the marks secured by them in the test. Where the selection is by written test and oral test the marks of both the tests are consolidated and then the ranking list is prepared. The ranking list is prepared with reference to the merit of the candidates i.e., the marks secured by them, the candidate securing the highest marks will be given the first rank and other candidates are arranged in the order of merit from the highest marks to the lowest marks. Where the candidates get equal number of marks in the interview when the examination consists only of oral test or if two or more candidates get equal total number of marks when the examination comprises both written and oral tests, those candidates will be bracketed. Candidates within the same bracket shall then be ranked 1, 2, 3 etc., within the bracket according to age i.e., the oldest being classified as No.1.

A plain reading would show that the above paragraph would operate only at the time of final selection and it has no application at the time of screening test. Similarly, Rule 4 or Rule 23 of the Rules of Procedure of APPSC, do not lead to an inference as is projected before us. APPSC is a constitutional authority. Its functions and powers are subject to various constitutional limitations including the limitations imposed by Part III of the Constitution of India. Their procedures, their Rules and the instructions in the Office Manual cannot be interpreted ignoring Articles 14 and 16 of the Constitution.

The decision of the Supreme Court in Pitta Naveen does not lay down the principle that under no circumstances the short-listed candidates for main examination can exceed 1:50. The facts in Pitta Naveen are as follows. In 2003, APPSC notified Group-I vacancies. As many as 1,52,000 candidates applied. There was supplemental notification pursuant to which 51,768 candidates applied. In the screening test, the APPSC arrived at the cut-off mark of 66% and short-listed 28,865 candidates. This was assailed in original application before the A.P.Administrative Tribunal. An interim order was passed directing reduction of the cut-off mark from 66% to 61%. In pursuance thereof, the Government issued G.O.Ms.No.200, dated 30.04.2005 directing APPSC to reduce the qualifying mark to 61%. This Government order was assailed before the Tribunal. During the pendency of the same, the main written examination was conducted and the original applications were dismissed by the Tribunal directing the Government to finalise the process of selection in accordance with G.O.Ms.No.570. The order of the Tribunal was assailed before the High Court. In W.P.No.2031 of 2006, this Court upheld G.O.Ms.No.200 dated 30.04.2005 reducing the cut-off mark to 61 issued pursuant to the interim order of the Tribunal. The Supreme Court while holding that G.O.Ms.No.570 has a statutory flavor; the notification is issued by APPSC under the proviso to Article 309 of the Constitution of India and that G.O.Ms.No.200 dated 30.04.2005 reducing the cut-off mark would amount to giving a goby to the principle of selection of short-listing the candidates, observed thus.

In total 558 vacancies were notified. Thus, only 27,900 candidates could have been called for main written examination on the basis of the norms fixed by the State itself. However, the actual number of candidates who passed the examination are said to have been 50,726. Although, actually it is stated that 32,056 candidates appeared. Thus, indisputably, a large number of candidates who had been allowed to appear at the examination were evidently permitted to do so in violation of norm of 1:50, as was specified by the State. The aforementioned rule could not have been relaxed. It did not have any rational basis. 66% cut-off mark was not fixed by the Commission. It was arrived at by the Commission in view of the marks secured by the respective candidates on applying the ratio of 1:50. Once a person falls beyond the said ratio, he was not qualified. He was not to be considered any further. The State and the Commission had themselves fixed three different stages of selection process which were required to be adhered to.

The decision in Pitta Naveen does not deal with the situation which is before us. It was a case where pursuant to the interim order of the Tribunal, the Government reduced the cut-off mark. It is nobodys case that 1004 left out candidates got less than 83 marks. They also got the same marks and drifted by misdirection in law, APPSC excluded them. G.O.Ms.No.570 or the notification No.39 of 2008 and supplemental notification No.10 of 2009 do not lay down the maximum number of candidates to be short-listed. In our considered opinion, when the said Government Order as well as the notification contemplate short-listing the candidates to be admitted to written examination fifty times the total number of vacancies, it is the minimum that should be admitted to written examination. In a case such as the one before us, if large number of candidates secured the cut-off mark, throwing them out of race at the very beginning would be denial of equality of opportunity. The Government Order and the notification have to be interpreted to be compliant with equality clause. If the plea of APPSC is accepted, it would violate equality clause. The Court must always interpreting the law or construe the Government policy in such a manner that it would always be compliant with the constitutional principles and not in a manner that subvert the equality principle.

We may reiterate that at the stage of screening test, all the candidates form one class irrespective of communities. All the candidates who secured the cut-off mark whether it is 150/150 or 83/150 are one class because it only enables them to participate in the written examination. When all of them form one class, again classifying them on the basis of age is irrational and is not acceptable to the Court. The fact that APPSC applies such a principle at the time of final selection can be no ground to sustain the classification at the stage of screening test, which is only intended to short-list the candidates. Therefore, we are of the considered opinion that the learned Tribunal has committed an error in accepting the contention of APPSC in this regard.

Conclusion

In the result, for the above reasons, we pass the following order.

(i) W.P.Nos.26119, 26329 and 26330 of 2011 are dismissed with costs;