Quashed

The State of Andhra Pradesh v. K. Venkatesh

Telangana HC19 Apr 2012WP/6696/2012

Case brief

AI extract

What is this about?

The High Court quashed orders of the Andhra Pradesh Administrative Tribunal allowing police constable candidates despite limitation bars and policy errors. The court held the tribunal erred in ignoring statutory limitation bars and exceeding jurisdiction by reformulating creamy layer policy.

What did the court decide?

Impugned orders of the Administrative Tribunal were quashed via writ of certiorari.

The State of Andhra Pradesh Vs K. Venkatesh — Pension and Retirement Benefits | Telangana HC (2012)

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*** THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY**

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WRIT PETITION Nos. 5769, 6667, 6668, 6677, 6681, 6682, 6686, 6689, 6690, 6691, 6692, 6695, 6696, 6697, 6698, 6699, 6701 and 6703 of 2012.

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%Dated:19.04.2012

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Between: The State of Andhra Pradesh, Represented by its Principal Secretary, Home (Police) Department, Secretariat Building, Hyderabad, And others.

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…Petitioners

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and K.Dhanraj, And others.

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…Respondents

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! Counsel for the Petitioners: Government Pleader for Services-I

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^Counsel for the Respondents: Ms.G.Uma Rani

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<Gist:

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>Head Note: ?Citations: 1. (1989) 4 SCC 582 2. (1998) 7 SCC 123 3. 2002 Suppl. (1) ALD 137 (DB)

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4. (2009) 15 SCC 321 5. (2010) 6 SCC 777 6. (2010) 12 SCC 204 7. AIR 1990 SC 2059 8. AIR 1993 SC 477 : 1992 Supp (3) SCC 217 9. (2010) 6 SCC 545 10. (1996) 6 SCC 506 11. (2007) 4 SCC 1 12. (2007) 4 SCC 361 13. (1997) 7 SCC 592 14. AIR 1998 SC 1703 15. AIR 1951 SC 467 16. AIR 1965 SC 722 17. (2003) 6 SCC 675 18. (2010) 8 SCC 685 : AIR 2010 SC 3043 19. AIR 1991 SC 1612 20. (2008) 9 SCC 24 21. (2011) 4 SCC 374 22. AIR 1985 SC 167 23. 1995 Supp (1) SCC 179 24. AIR 1998 SC 331

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THE HON’BLE SRI JUSTICE V.V.S.RAO AND

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THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

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WRIT PETITION Nos. 5769, 6667, 6668, 6677, 6681, 6682, 6686, 6689, 6690, 6691, 6692, 6695, 6696, 6697, 6698, 6699, 6701 and 6703 of 2012.

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Dated:19.04.2012

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Between:

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The State of Andhra Pradesh, Represented by its Principal Secretary, Home (Police) Department, Secretariat Building, Hyderabad, And others.

Petitioners

And K.Dhanraj,

And others.

... Respondents

THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

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WRIT PETITION Nos. 5769, 6667, 6668, 6677, 6681, 6682, 6686, 6689, 6690, 6691, 6692, 6695, 6696, 6697, 6698, 6699, 6701 and 6703 of 2012.

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COMMON ORDER: (Per Hon’ble Sri Justice V.V.S.Rao)

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This batch of writ petitions with identical background facts, throws up similar question. There are three impugned orders passed by the Andhra Pradesh Administrative Tribunal (APAT or the tribunal). These followed an earlier order dated 20.12.2011 of the Hon’ble Vice Chairman (HVC) of the APAT, constituting as a Bench under Section 5(6) of the Administrative Tribunal Act, 1985 (the Act), in O.A.Nos.10947 of 2009 and batch. The first respondent (hereafter, the applicants) in each of the cases was successful before the APAT. All of them entered caveat. After proper notice to their Counsel, the matter is heard finally at the stage of admission at length. This common order shall dispose of all the petitions.

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Background

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The State Level Police Recruitment Board (hereafter, the Board) issued a recruitment notification, dated 15.11.2008, inviting applications from eligible male and female candidates for limited

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recruitment to the posts of Stipendiary Cadet Trainee Police Constables (SCTPC) (Civil & Armed Reserve). These adhoc posts are governed by the Andhra Pradesh Police (Stipendiary Cadet Trainee) Rules, 1999 (for brevity, the Special Rules). A large number of candidates applied. After publication of the final results of the written test on 21.02.2009 the selectees were placed under training.

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Non-selectee Backward Classes (BCs) candidates approached the tribunal in O.A.No.10947 of 2007 and batch. They prayed for a declaration that the action of the Board in not selecting them to the posts by treating them as belonging to BCs by considering the certificate issued by the Tahsildar as illegal and arbitrary and for a consequential direction to appoint them to the notified posts.

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It was alleged that they belong to BC, they did not stand excluded by the creamy layer policy; they produced the valid certificate issued by the competent authority; and in an arbitrary manner the Board considered their case as OC candidate for nonproduction of a BC non-creamy layer certificate. The Government and the Board opposed contending that as per the relevant Government Order Rs.4.00 lakhs income limit is a criteria for determining the creamy layer among BCs; the applicants failed to produce the relevant certificate that they did not belong to creamy layer and that the necessary amendment was also made to Rule 22 of the Andhra Pradesh State and Subordinate Service Rules , 1996 (General Rules). The learned Vice Chairman sitting single considered as many as five points and allowed the Original Applications on 28.02.2011. While doing so G.O.Ms.No.3, dated 04.04.2006 was set aside and a further direction was given to fix the creamy layer as per the Government of India (GoI) Memo, dated 25.10.2008, i.e., Rs.4.5 lakhs and consider the case of the

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applicants therein as per their merit under various BC categories. There is no dispute that the Board implemented this order by giving appointment orders to as many as 59 BC candidates. Be it noted, within a month thereafter, the learned Chairman of the tribunal also allowed similar case, being O.A.No.3625 of 2010, following the order of the HVC.

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The applicants in these matters filed another batch of applications seeking similar relief. They claimed the same relief as in O.A.No.3625 of 2010. The learned Judicial Member sitting single followed the order of HVC and allowed the Original Applications by three separate orders passed in December 2011 and January 2012, aggrieved by which, the Government, the Board and the Cyberabad Commissioner of Police filed these writ petitions.

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Submissions

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The Government Pleader for Services – I made four main submissions as follows.

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i) The applicants’ applications are barred by delay and laches, and therefore, the tribunal could not have exercised equities in their favour by following the earlier orders of the tribunal and giving the same benefit, especially when the Board already issued fresh recruitment notification on 31.10.2011. He relies on [1] S.S.Rathore v State of Madhya Prades h , N.Balakrishnan v M.Krishnamurth y^[2] , Government of Andhra Pradesh v [3] S.Yellamand a , Ghulam Rasool Lone v State of Jammu and Kashmir^[4] and State of Orissa v Rajkishore Nand a^[5] .

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ii) The Original Applications ought to have been dismissed for non-joinder of necessary parties which is fatal. Elaborating

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this submission he would contend that pursuant to 2008 notification selections were made and many BC candidates were appointed; who are not made parties; by the time the tribunal was moved in October 2001 the Board issued a fresh notification to fill up all the vacancies which arose as well as that remained unfilled, and thus, there are no vacancies available to accommodate the applicants. If the impugned orders are to be implemented all the BC candidates who are likely to be appointed after training have to be recalled by cancelling their appointments and in the absence of such effected parties, the tribunal ought not to have entertained the Original Applications. He relied on the decision of the [6] Supreme Court in Public Service Commission v Mamta Bisht .

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iii) The applicants sought a direction to the Board to appoint them against BC vacancies as per the notification dated 28.03.2008. There was no such notification ever, and therefore, the tribunal was in error in entertaining the Original Application with defective prayer and granting the relief, which was not asked for i.e., directing the Board to appoint the applicants pursuant to the notification dated 15.12.2008 which was not the subject matter of the Original Applications.

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iv) the applicants were not eligible for being considered against BC vacancies. As per the notification, every candidate claiming reservation under BC quota is required to produce the certificate in Form Annexure IV to the notification to the effect that such candidate does not belong to the section of creamy layer as per G.O.Ms.No.3. None of the applicants enclosed certificate to that effect and all of them in column 9 of the application admitted that they belong to the section of creamy layer. Therefore, they cannot turn around and take different stand before the tribunal. The non-consideration of the applicants against BC vacancies is

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justified as per the Special Rules and as well as the guidelines and instructions in the recruitment notification.

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The Counsel for the applicants Ms.G.Uma Rani would submit that the plea of delay, laches and equities was not raised before the tribunal. Nextly and alternately she would urge that even if such plea is permitted to be raised, there is no delay on the part of the applicants to approach the tribunal. She would submit that after publication of the final select list on 21.02.2009, immediately some of the non-selectees filed O.A.No.10947 of 2009 which was allowed on 28.02.2011. In obedience thereto, the Board appointed 59 persons. This list was displayed on the website. Immediately thereafter, the applicants filed cases, and therefore, there is no delay on their part. The Counsel would also submit that after completion of the selections pursuant to 2008 notification, large number of BC vacancies remained unfilled. Similarly situated persons were already appointed pursuant to the orders of the tribunal on two occasions. If the applicants are appointed, no prejudice would be caused to any third parties. She relied on Lt.Governor of Delhi v Const.Dharampa l^[7] . Lastly, she would submit that the tribunal did not alter the policy of fixing income ceiling limit, and that in accordance with the subsequent Memo of the GoI, a direction was issued to the Government to fix the ceiling limit at Rs.4.5 lakhs for determining the creamy layer among the BCs. This according to the Counsel does not amount to policy change nor the tribunal exceeded its jurisdiction.

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The reply of the Government Pleader is as follows. The issue of G.O.Ms.No.3 laying down the criteria to determine the creamy layer among the BCs was issued in obedience to the directions issued by the Supreme Court in Indra Sawhney v Union of Indi a^[8] . An amendment was also made to General Rules by

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inserting clause (l) to Rule 22(2) of the General Rules. And even though, subsequently, the Government Order amending Rule 22 has been kept in abeyance, it does not make any difference, as the Government is bound to exclude the creamy layer. He also [9] relies in this regard on T.Narsimhulu v State of Andhra Prades h .

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Eligibility of the applicants

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The Board, as noticed supra, issued the recruitment notification inviting applications for as many as 3324 SCTPCs. A candidate must have passed Intermediate or its equivalent as on 01.07.2008 and must not have completed the age of 22 years subject to relaxation of age provided for SC/ST and BCs. Besides, he/she should meet the specified physical standards (height and chest) and the visual standards. The reservation to BC category candidates is dealt with in paragraph 4 and it would be necessary to extract the same as under.

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Government have issued in G.O.Ms.No.3, Backward Classes Welfare (C2) Department dated 04.04.2006, laying down the criteria to determine Creamy Layer among Backward Classes in order to exclude from the provisions of reservations. Government of Andhra Pradesh has adopted all the criteria to determine the Creamy Layer among Backward Classes as fixed by the Government of India. The Government of Andhra Pradesh have fixed the annual income limit at Rs.4,00,000/.

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a) The candidates belonging to Backward Classes should submit the Community certificate in the format given in Annexure IV or Annexure V to avail for relaxation in age. The certificate must have been issued by the competent revenue authority not below the rank of Mandal Revenue Officer or equivalent.

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b) Only those candidates belonging to Backward Classes who do not belong to ‘Creamy Layer’ as defined in G.O.Ms.No.3, Backward Classes Welfare (C2) Department dated 04.04.2006 will be eligible to avail of reservation. They should submit the Community certificate in the format given in Annexure IV.

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c) Candidates belonging to Backward Classes who belong

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to ‘Creamy layer’ are eligible to avail for relaxation in age but not the quota for reservation. They should submit the Community certificate in the format given in Annexure V. (emphasis supplied)

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The language is so plain that it does not leave any doubt. Every person claiming reservation as BC candidate is required to submit certificate in Annexure IV which contains separate column indicating whether the candidate belongs to the section of creamy layer as per G.O.Ms.No.3, dated 04.04.2006. Those candidates belonging to creamy layer are eligible to avail relaxation in age, but not the quota for reservation. They shall be considered as OC candidates. This was in accordance with the Indra Sawhney ratio.

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In their Original Applications (with similar pleadings), the applicants alleged that the Board wrongly treated them as creamy layer BCs instead of treating them as BC candidates in spite of production of the certificate in form Annexure IV. But, as a question of fact the tribunal found that all the applicants did not produce the certificate in form Annexure IV along with their applications. The tribunal followed the earlier order in O.A.No.10947 of 2009 and issued a direction to “to re-examine whether the applicants come within the creamy layer or not by taking into account the certificates produced by them subsequently or insist them to produce the certificates afresh and consider their case as per their merit under various Backward Class communities as per the reservation by taking into account the unfilled vacancies also”.

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The validity of the criteria for determining the creamy layer as ordered by the Government in G.O.Ms.No.3 and the scope and power of the Court/tribunal to interdict with the policy is altogether a different question. Insofar as this point is concerned, the finding of the fact that the applicants did not enclose the community

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certificate in form Annexure IV stands concluded. This itself makes the applicants ineligible for being considered against BC vacancies. There is no dispute that they were considered against OC vacancies and they did not come up in the selection because they scored less marks than the marks obtained by the last candidate in different categories of SCTPCs. This point is held accordingly.

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Judicial Review of Policy

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Indra Sawhney considered the constitutional validity of GoI Office Memorandum dated 25.09.1991 providing for the reservation to OBCs (other Backward Classes). Multitudinal issues were raised and considered elaborately. One of the questions i.e., question No.3(d) was “whether the 'means' test can be applied in the course of identification of backward classes? And if the answer is yes, whether providing such a test is obligatory?” It was answered as follows.

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Keeping in mind all these considerations, we direct the Government of India to specify the basis of exclusion - whether on the basis of income, extent of holding or otherwise - of 'creamy layer'. This shall be done as early as possible, but not exceeding four months. On such specification persons falling within the net of exclusionary rule shall cease to be the members of the Other Backward Classes (covered by the expression 'backward class of citizens') for the purpose of Article 16(4). The impugned Office Memorandum dated 13th August, 1990 and 25th September, 1991 shall be implemented subject only to such specification and exclusion of socially advanced persons from the backward classes contemplated by the said O.M. In other words, after the expiry of four months from today, the implementation of the said O.M. shall be subject to the exclusion of the 'creamy layer' in accordance with the criteria to be specified by the Government of India and not otherwise.

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(emphasis supplied)

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Again the majority in paragraph 123 (B) ( of AIR) reiterated the

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directions as follows.

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Within four months from today the Government of India shall specify the bases, applying the relevant and requisite socio-economic criteria to exclude socially advanced persons/sections ('creamy layer') from 'Other Backward Classes'. The implementation of the impugned O.M. dated 13th September, 1990 shall be subject to exclusion of such socially advanced persons ('creamy layer').

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The law declared by the Supreme Court is binding and Article 144 of the Constitution ordains all the civil and judicial authorities in the territory of India to take action in aid of the Supreme Court. After Indra Sawhney decision the GoI in Ministry of Personnel, Public Grievances and Pensions, came out with Office Memorandum dated 08.09.1993 enumerating the persons belonging to OBC, inter alia, fixing the annual income ceiling limit of Rs.2.5 lakhs for exclusion from OBC category. The State Government enacted the Andhra Pradesh Commission for Backward Classes Act, 1993 (BC Act), constituting Commission for Backward Classes. It was requested to evolve criteria for identification of creamy layer among the backward classes in the State. After receiving the report on 01.08.1994, the Council of Ministers requested a Cabinet Sub-Committee (Group of Ministers i.e., GoM) to take up an in-depth study and make suitable recommendations. In the meanwhile, it appears, a writ petition, being W.P.No.22949 of 2009, was filed before this Court for a direction to the GoAP to evolve creamy layer criteria. An affidavit was filed giving undertaking that the same will be evolved soon. Pursuant to such plea, the writ petition was disposed of. Be that as it is, the GoM submitted report on 20.02.2006 adopting creamy layer as fixed by GoI, but proposed to raise the income limit to Rs.4.00 lakhs per annum instead of Rs.2.5 lakhs. Accepting the proposals, the Government issued G.O.Ms.No.3, dated

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04.04.2006, directing to adopt all the criteria to determine creamy layer among BCs adopting income limit of Rs.4.00 lakhs per annum.

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The Government subsequently issued G.O.Ms.No.496, dated 20.10.2009, amending Rule 22 of the General Rules in exercise of the power under the proviso to Article 309 of the Constitution. A new clause (l) was inserted in sub-rule (2) of Rule 22 which reads, “in implementing the rule of reservation in favour of Backward Classes the creamy layer shall be excluded. The criteria as fixed by the Government of India shall be adopted to determine the creamy layer except the annual income which is fixed at Rupees Four Lakhs per annum in the State”. Whatever be the reason, two days thereafter, the Government issued executive instructions vide G.O.Ms.No.504, dated 22.10.2009, keeping the amendment in abeyance till further orders. Nevertheless, the Board stipulated that the creamy layer among the BCs shall not be considered against reserved vacancies as per the guidelines in G.O.Ms.No.3 unless they produce the certificate in Form Annexure IV.

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In O.A.No.10947 of 2009 the tribunal did not specifically consider the ineligibility of creamy layer BCs for the posts. After tracing the background of the creamy layer concept in the State, and after referring to Indra Sawhney, Indra Sawhney II v Union of Indi a^[10] , Nair Service Society v State of Keral a^[11] , and Ashok Kumar Thakur (8) v Union of Indi a^[12] , the tribunal concluded that, “the persons who belong to creamy layer as determined by the Central Government and State Governments from time to time cannot be given the benefit of reservation contemplated for other Backward Classes”. Nevertheless, the tribunal while observing as below found fault with the ceiling limit at Rs.4.00 lakhs, set aside

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G.O.Ms.No.3 and issued direction to the GoAP to fix the ceiling limit at Rs.4.5 lakhs.

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The Hon’ble Supreme Court has given a categorical direction to exclude the creamy layer from the benefit of reservation to the candidates belonging to Backward Class communities. That direction is binding and the State is bound to implement it. Failure to amend the rule is only a lapse on the part of the State and that cannot dilute the direction of the Hon’ble Supreme Court. Therefore, it follows irrespective of amendment to Rule 22 of A.P.State and Subordinate Rules introducing the Creamy Layer concept, the action to exclude the candidates belonging to Creamy Layer from the reservation facility is a just and valid decision and cannot be found fault.

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But, the matter does not end there. As already appointed out, the notification issued by the Police Recruitment Board is dated 15.11.2008. By that date, the Government of India fixed the limit of Creamy Layer as Rs.4.5 lakhs and that was adopted by Government of Andhra Pradesh and communicated the same to all the concerned by its memo dated 25.10.2008. So, the State adopted the said limit. So, this was prior to issue of notification by the Board. So, fixing the ceiling limit at Rs.4 lakhs following G.O.Ms.No.3 is bad. They ought to have fixed the ceiling limit at Rs.4.5 lakhs to consider whether the candidates belong to Creamy Layer or not. Therefore, the said notification is bad to that extent. However, the notification is valid excluding the Creamy Layer from the concept of reservation among BCs. (emphasis supplied)

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Even in the orders impugned in these writ petitions, the learned Judicial Member followed the same reasoning, issued a direction to refix the creamy layer ceiling and consider the applicants. The applicants in their counter before this Court raised a specific plea that in the absence of any valid amendment to Rule 22, the executive guidelines in G.O.Ms.No.3 cannot supplement the rule of reservation.

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To reiterate in O.A.No.10947 of 2009 a finding was recorded that whether or not there is an amendment to Rule 22 of the General Rules, the directions issued by the Supreme Court are binding. These observations of the tribunal are in tune with the conclusions of this Court as above. When the GoAP determined

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criteria for excluding creamy layer BCs as a policy and when such policy was in furtherance of the directions of the apex court, whether the tribunal can reformulate the policy. The answer must be in the negative.

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Policy decisions require delicate balancing and consideration of complex politico-socio-economic inputs. Judiciary cannot ordinarily encroach upon the executive policy making prerogative, and it is best left to the executive organ of the State. Judicial scrutiny is very rare and limited for justiciability of policy is not always conclusive. But when a policy partakes the shape of legislation or a rule and such policy is arbitrary, unreasonable or discriminatory, the Court scrutiny is not totally ruled out. Further, when the policy impinges fundamental rights, the Courts would be willing to invalidate that part of the policy which cannot stand scrutiny. Otherwise, the Court generally dissuades itself from entering into the wisdom of a policy (M. P. Oil Extraction and another v. State of M.P^[13] and State of Punjab v. Ram [14] Lubhaya Bagg a ) . Even where the executive policy cannot stand the scrutiny by the Court for reasons as hereinabove, the Court of judicial review/tribunal can only invalidate or strike down the policy but it cannot reformulate the policy; judicial review is destroyer and not creator.

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Thus we are convinced that the tribunal fell in error in setting aside the G.O.Ms.No.3 even though there was no such prayer while holding that the Government is bound by the directions issued by the Supreme Court in Indra Sawhney. We further find that the tribunal committed grave error apparent on the face of the record in directing the Government to reformulate the policy by increasing the creamy layer ceiling limit to Rs.4.5 lakhs.

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We may passingly mention that even Indra Sawhney does not specifically deal with income ceiling aspect and it was left to the executive to evolve proper criteria to exclude creamy layer in enforcing reservations. The tribunal totally lost sight of these fundamental aspects, and therefore, we record our disapproval.

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A submission is made that in the absence of valid enforceable amendment to Rule 22 the applicants cannot be denied the benefit of reservation. We are afraid this submission must fail for two reasons. First, in O.A.No.10947 of 2009 the HVC categorically held that whether or not there is amendment to Rule 22, directions issued by the Supreme Court are binding on the State Government. This finding remained unchallenged, and therefore, the applicants cannot now be heard to raise such a plea. Secondly, we have briefly indicated the reasons for issue of G.O.Ms.No.3, the amendment made to Rule 22 by G.O.Ms.No.496, dated 20.10.2009, and the order of the Government in G.O.Ms.No.504, dated 22.10.2009, keeping the amending Government Order in abeyance. Does it take away the effect of Rule 22(2)(l)? In our considered opinion, G.O.Ms.No.504, dated 22.10.2009, cannot and would not have any effect on the amendment made by the Government under the proviso to Article 309 of the Constitution.

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In T.Narsimhulu the Supreme Court considered the effect of non-publication of the Rules or amendment to Rules made under the proviso to Article 309 of the Constitution. After referring to the two leading cases on the subject of the requirement of publication of notification in Harla v State of Rajastha n^[15] and State of Maharashtra v Mayer Hans Georg e^[16] , the apex court observed that the amendment of the Rule or promulgation of Rules by a Government Order is intended to make known and the reasonable

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mode of making known the Rules would be sufficient compliance under the proviso to Article 309 of the Constitution. The relevant observations are as follows.

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This is not to say that rules made under the proviso to Article 309 of the Constitution are not required to be published at all. A rule made under the proviso to Article 309 of the Constitution has the same effect as an Act of the appropriate legislature regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. Hence, even if Article 309 of the Constitution does not say that the rules made under the proviso thereto are required to be published, these rules are required to be published just as any other Act passed by the appropriate legislature is required to be published so that the persons affected by the rules or the Act are aware of the rule or the Act…

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It will be clear from the law laid down by this Court that where the law prescribes the mode of publication of the law to become operative, the law must be published in that mode only, but where the mode of publication of the law is not prescribed by the law, such law should be published in some usual or recognised mode to bring it to the knowledge of all persons concerned. In the present case, the contention of the appellants before the Tribunal or the High Court was not that the government order in GOMs Nos. 35 and 51 that the amendment to Rule 2 of the Forest Service Rules would have retrospective effect from 8-4-1986 was never made known by any reasonable mode, but that it was not published in the Official Gazette. This contention of the appellants, as we have seen, has no merit.

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(emphasis supplied)

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In view of the above we hold that when the Government issued G.O.Ms.No.496, dated 20.10.2009, inserting clause (l) in sub-rule (2) of Rule 22 of the General Rules for amending the Rule of reservation by excluding creamy layer and by fixing Rs.4.00 lakhs per annum as the income ceiling limit it is valid and binding. We hasten to add that even otherwise as rightly held by the tribunal in O.A.No.10947 of 2009, the directions issued by the Supreme Court to exclude the creamy layer and the policy decision in G.O.Ms.No.3 shall be binding on the GoAP as well as the Board in making recruitment to SCTPCs. We accordingly

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decide this point in favour of the Government and the Board.

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Defect in relief

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The applicants went to the tribunal seeking a direction to select and appoint them under BC-B category (non-creamy layer) pursuant to the notification dated 28.03.2008 by extending the benefit of judgment in the earlier O.A. It is an admitted fact that the Board issued the relevant notification on 15.11.2008. It is also admitted fact that by the time the tribunal allowed the Original Applications in December 2011 and January 2012, the so called notification dated 28.03.2008 was never issued. The appointees completed training. As per the Special Rules, they were regularly appointed as Constables. In that view of the matter, though we agree with the submission of the Government Pleader, in view of the findings on other points, we leave this issue with the observation as hereinabove.

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Delay, laches and equity

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It is trite, a statutory tribunal created under Parliamentary or State enactment has to act within the powers endowed by the statute. The limitations placed by the statute cannot be ignored and any excess exercise would be error in the jurisdiction and ex facie grave error (Suryadev Rai v Ram Chander Ra i^[17] ) . The powers of administrative tribunal to adjudicate the service law disputes are also circumscribed by other principles settled of judicial review. Section 21 of the Act bars the tribunals from admitting an application which is not made within one year from the date on which the adverse order was made. It is not a provision in the nature of taking away the right of the aggrieved

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public servant. To some extent it controls the exercise of jurisdiction by the tribunal and is absolute, subject, however, to Section 21(3) of the Act, empowering to entertain time barred applications if the aggrieved satisfies that he had sufficient cause for not making application within the time.

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The notification was issued on 15.11.2008 and the final select list was published on 21.02.2009. The Original Applications were filed in October/November 2011 with a delay of more than one year seven months (after excluding one year of limitation). The applicants did not move any applications under Section 21(3) of the Act seeking condonation of delay. In this background we are afraid the tribunal could not have entertained the O.As ignoring Section 21(1)(a) and Section 21(3) of the Act. The submission of the applicants that the plea of delay and laches was not raised before the tribunal does not impress us. The bar of exercise of jurisdiction is on the tribunal. When any application is filed for redressal, it is required to be seen whether their jurisdiction is barred by Section 21(1)(a) of the Act. The law of limitation is substantive law and has definite consequence on the rights and obligations of the party to the lis. The law mandates rejection of the applications beyond the prescribed period of limitation, save proven sufficient cause for the delay (Balwant Singh v Jagdish [18] Sing h ) .

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The Counsel for the applicants, however, submits that the applications were moved when her clients came to know about the appointment of 59 persons stipendiary constables in obedience to the orders of the tribunals in O.A.No.10947 of 2009, and therefore, they cannot be treated as time barred. She would further contend that the applicants approached the tribunal seeking relief as was given to similarly placed persons and therefore, the question of

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delay does not arise. We are afraid, we cannot agree with these submissions.

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I n S.S.Rathore a seven Judge Bench interpreted and construed Section 21(1)(a) of the Act and held that in view of the specific special provision prescribing the period of one year for making of the applications, Article 58 of the Limitation Act, 1963, cannot be invoked. In Ghulam Rasool Lone it was held that even if a person claims equity he should enforce his claim within reasonable time rather than sitting on the fence waiting for time at will. For these reasons, we are convinced that the tribunal could not have entertained the Original Applications without there being a prayer for condonation of delay. The fact that similarly placed persons got relief from the tribunal cannot be a ground to ignore the absolute bar created under Section 21 of the Act. We will now take up the question as to whether the applicants can be denied the relief which was given to those other persons in the earlier cases.

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The creation and abolition of posts is executive prerogative. The Court has no say in either creation or abolition of posts; a mandamus cannot issue to create posts or fill up the vacant posts. A person who participates in the selection process cannot claim any enforceable right of inclusion in the list of selectees, although he/she has a limited right of being considered for a public post under Article 16(1) of the Constitution (Shankarsan Dash v Union of Indi a^[19] ) . A person whose name appears in the select list does not acquire any indefeasible right of appointment. The empanelment is only condition of eligibility for appointment. Such a person cannot complain discrimination violating Articles 14 and 16(1) of the Constitution and seek a direction to fill up unfilled vacancies because filling up of vacancies over the notified

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vacancies amounts to filling up of future vacancies which is not permissible in law (Rajkishore Nanda). Even where a select list is prepared it expires after the appointments are made and at a belated stage the Court cannot grant any relief. A select list cannot be treated as reserve for the purpose of appointments so that vacancies can be filled up taking the names from that list as and when it is required. In a situation where the advertised vacancies remained unfilled or the recruiting authority decides not to fill up all those vacancies or those persons selected expressed their disinclination to join the post, the Courts/tribunals cannot issue directions to the State to initiate selection process to fill up vacancies or to fill up the vacancies with the empanelled selectees (Rajkishore Nanda).

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Further more, when once the selections are completed and a fresh recruitment notification is issued inviting the applications to fill up the fresh vacancies or to fill the unfilled vacancies or selections made pursuant thereto cannot be operated, no person included therein can claim a right to be appointed to the vacancies which are already advertised subsequently. Any such move would certainly violate the equality clause in the Constitution and will violate the right to public employment who acquired eligibility for the post subsequent to the issue of the first notification. Applying these principles we have to hold that the directions issued by the tribunal to reformulate the creamy layer policy and then consider the applicants against the BC vacancies is certainly not in accordance with law. Such directions cannot be sustained.

¶96

More often than not, in service law the cases are filed in clusters. If the Court/tribunal grants some relief, that is not end of day. Many people pick up the thread and start pouring in into the Courts and tribunals seeking similar relief. If the relief granted in

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the first cluster of cases is unsustainable or if the “fence sitters” approach the tribunal belatedly what should be the approach in granting relief to them? The law in this area appears to be well settled. An illegality or mistaken decision does not confer any enforceable right by a mandamus. The Bench dealing with the subsequent cases can always ignore the earlier mandate on the ground that the relief granted earlier is not legally sustainable.

¶98

Ghulam Rasool Lone is directly on the point. The facts therein are some what similar and require to be stated. In 1987 constable Abdul Rashid Rather and six others instituted a writ petition in Jammu & Kashmir High Court seeking promotion to the post of Sub Inspector. The learned single Judge as well as the Division Bench granted relief. The Special Leave Petition thereagainst was dismissed. In 1997 four more constables filed similar writ petition. The learned single Judge allowed it which was reversed by the Division Bench. The constables then approached the Supreme Court and their appeal was allowed on [20] 01.08.2008 (Maharaj Krishan Bhatt v State of Jammu & Kashmir ) . In the meanwhile, Ghulam Rasool Lone filed a writ petition which was allowed by the learned single Judge, but reversed by the Division Bench. The Supreme Court considered the only question as to whether the Division Bench was wrong in denying the relief to Lone. Dismissing the appeal, the Supreme Court observed as under.

¶99

It is now well settled that who claims equity must enforce his claim within a reasonable time…

¶100

It is beyond any cavil of doubt that the remedy under Article 226 of the Constitution of India is a discretionary one. For sufficient or cogent reasons a court may in a given case refuse to exercise its jurisdiction; delay and laches being one of them. While considering the question of delay and laches on the part of the petitioner, the court must also consider the effect thereof.

¶101

It will bear repetition to state that the petitioner waited till Abdul Rashid Rather was in fact promoted. He did not consider it necessary either to join him or to file a separate writ petition immediately thereafter, although even according to him, Abdul Rashid Rather was junior to him. The Division Bench, therefore, in our opinion rightly opined that the petitioner was sitting on the fence.

¶102

We understand that there would be a heart burning insofar as the petitioner is concerned, but then he is to thank himself therefor. If those five persons, who were seniors to Hamiddulah Dar filed writ petitions immediately, the High Court might have directed cancellation of his illegal promotion. This Court in Maharaj Krishan Bhatt v State of J & K ((2008) 9 SCC 24) did not take into consideration all these aspects of the matter and the binding decision of a three-Judge Bench of this Court in Govt. of W.B. v. Tarun K. Roy ((2004) 1 SCC 347). The Division Bench of the High Court, therefore, in our opinion was right in opining that it was not necessary for it to follow Maharaj Krishan Bhatt.

¶103

[21] In Bharat Sanchar Nigam Limited v Ghanshyam Das s a

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three judge Bench laid down that where only the effected parties approach the Court and relief is given to those parties, the fence sitters who did not approach the Court cannot claim that such relief should have been extended to them thereby unsettling or interfering with the rights which had accrued to others. Applying these principles we are convinced that the petitioners cannot claim equity as they failed to enforce it within reasonable time. The notification for fresh recruitment has been issued on 31.10.2011 and any order in favour of the applicants would certainly unsettle things and interfere with the rights of those appointed BC candidates. When such affected parties are not made even in representative capacity as party respondents to OAs, the relief could not have been granted to the applicants (Prabodh Verma v [22] [23] State of Uttar Prades h , Ishwar Singh v Kuldip Sing h , Arun [24] Tewari v Zila Mansavi Shikshak Sang h and Mamta Bisht).

¶105

In the result, we hold that the impugned orders in O.A.Nos. 8003, 8004, 8281, 8628, 8629, 8687, 8688, 8808 and 8870 of 2011, dated 30.12.2011; 8000, 8231, 8232, 8241 and 8260 of 2011, dated 20.12.2011; and 8581, 8584, 8585 and 8927 of 2011, dated 19.01.2012, of the tribunal suffer from grave error apparent on the face of the record warranting the issue of writ of certiorari. A writ shall issue accordingly quashing the impugned orders of the APAT. The Writ Petitions are allowed. The miscellaneous petitions, if any, shall stand disposed of. There shall be no order as to costs.

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_______________ (V.V.S.RAO, J)

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________________________________ (G.KRISHNA MOHAN REDDY, J)

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19.04.2012

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Note: LR copy to be marked. B/o.

¶110

¶111

[1] (1989) 4 SCC 582 [2] (1998) 7 SCC 123 [3] 2002 Suppl. (1) ALD 137 (DB) [4] (2009) 15 SCC 321 [5] (2010) 6 SCC 777 [6] (2010) 12 SCC 204 [7] AIR 1990 SC 2059 [8] AIR 1993 SC 477 : 1992 Supp (3) SCC 217 [9] (2010) 6 SCC 545 [10] (1996) 6 SCC 506 [11] (2007) 4 SCC 1 [12] (2007) 4 SCC 361

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[13] (1997) 7 SCC 592 [14] AIR 1998 SC 1703 [15] AIR 1951 SC 467 [16] AIR 1965 SC 722 [17] (2003) 6 SCC 675 [18] (2010) 8 SCC 685 : AIR 2010 SC 3043 [19] AIR 1991 SC 1612 [20] (2008) 9 SCC 24 [21] (2011) 4 SCC 374

¶113

[22] AIR 1985 SC 167

¶114

[23] 1995 Supp (1) SCC 179

¶115

[24] AIR 1998 SC 331

The State of Andhra Pradesh v. K. Venkatesh

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The State of Andhra Pradesh v. K. Venkatesh

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