MARRIPATI NAGARAJA AND ORS. v. THE GOVERNMENT OF ANDHRA PRADESH AND ORS

Citation: [2007] 11 S.C.R. 506

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

MARRIPATI NAGARAJA AND ORS. v. THE GOVERNMENT OF ANDHRA PRADESH AND ORS.pdf

Judgment text

MARRIPATI NAGARAJA AND ORS. v. THE GOVERNMENT OF ANDHRA PRADESH AND ORS. OCTOBER 12, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] Service Law: .. ,. Reservation-For women-In direct recruitment-Not specified in the Advertisement-By subsequent Government Order, providedto the extent of30% with retrospective effect-:By further Notification 113 percentage ofreservation increasedto 33 %-Permissibility to such reservation-Held: Reservation permissible-Rule providing reservation to women already existing on the date, the posts were advertised-Subsequent Notification only increased percentage for such reservation-State has the power to make Rules with retrospective teffect and retro-active operation-The rule providing reservation having been given retrospective effect and particularly when its constitutionality has not been questioned would be applicable~ Andhra Pradesh State and Subordinate Service Rules-r. 22-A---;- Constitution ofIndia, 1950-Article 309 Proviso-Retrospective Operation.

Recruitment-Screening test-Second screening test with the approval ofAdministrative Tribunal-Candidates challengingselection process on the groundthatpreparation time givenfor secondscreening ~ test was very short-Held: Selection process not beingdiscriminatory, could not be set aside on this ground alone. Andhra Pradesh Public Service commission issued Notification invitingapplicationsfor recruitmenttovarious posts includingthe posts ofAssistant Director ofAgriculture. No stipulations were made in the Notification, regarding reservation for thewomen. ) ANDHRA PRADESH ;. Appellants had applied for the postofAssistant Director, in tenn~ " ofthe Notification. About 510 candidates appeared for screening test on 27. 12. 1992. Appellants-candidates filed original application on different grounds which was dismissed by the Tribunal. During pendency ofthe, application, State had issued GovernmentOrderon 6. 10.

1995 providing for reservation for women candidates to the extentof30% in the matter ofdirect recruitmentwith retrospective effectfrom 2. 1. 1984. Byanother y Notification, dated 28. 5. 1996, State increased the percentage of 113 reservation to 33 %. An application by the Commission seeking short-listing of the candidates was allowed by the TribunalAs perdirection oftheTribuna~ · a Notification for conducting a fresh screening test was issued on 12. 12. 2000 whereby second screening test of510 candidates was to be conducted on 7. 1. 2001. . n Candidates filed original applications on the ground that ' reservation for women could not have been provided in terms of , Notification dated 28. 5. 1996 and that a very limited time had been given to them for appearing in the second screening test. In the meantime Commission interviewed the suitable candidates.

The applications were dismissed by the Tribunal holding that the Selections had to revised restricting the reservation for women to the extent of30%. • Writ Petitions by the candidates as well as the Commission, challenging the order ofthe Tribunal, were dismissed. Hence the present . , ;appeals by the candidates and also by the Commission• Dismissing the appeals ofthe candidates and allowing that ofthe Commission, the Court HELD: 1. 1. Itiswell settled that the ruleswhichwould beapplicable for selecting the candidates would be the one which were prevailing at ~ ~ the time ofthe notification. It is also equally well settled that the State may, subject to constitutional limitations, amend the rule with retrospective effect. [Para 12) [513-A, B] \ ~ "' 1. 2. The women candidates, in terms of Rule 22-A of Andhra Pradesh State and subordinate Service Rules, were, therefore, only entitled to preference.

By reason of the said notification merely, the 113 percentage has been increased from 30% to 33 %. It has been given a retrospective effect; as the existing sub-rule (2) of Rule~22-A was substituted. By reason ofthe said Notification, no existing right ofany person has been taken away. In fact, as the selection process was not . over, the question ofapplicability ofthe said Notification would have fallen for consideration only when a fmal selection list was to be made and not prior thereto. [Para 13] (513-F, G] 1. 3. The State, in exercise ofits power conferred upon it under the proviso appended to Article309 ofthe Constitution oflndia, is entitled to make rules with retrospective effect and retro-active operation. Ordinarily,inabsenceofany rule and thattoo a rulewhichwas exp~ly given a retrospective effect, the rules prevailing as on the date ofthe notification are to be applied.

But if some rule has been given a retrospective effect which is within the domain ofthe State, unless the same is set aside as being u~constitutional, the consequences flowing therefrom shall ensue. In such an event, the applicable rule would. not bethe rulewhichwas existingbuttheonewhich had beenvalidly brought on the statute bookfrom an an. terior date. The Tribunal and the High Court, therefore, committed an errorin opiningotbenvise, particularly when the constitutionality ofthe said rule was not in question. (Para 14] (514-A, B, C] .. NT. Devin Katti v. Karnataka Public Service Commission, [1990] ... 3sec157, relied on. """ 2. The fact that candidates had been given only seven days time for making preparation to appear in the second screening test, cannot, give rise to a ground for setting aside the entire selection process. The Tribunal did not make any discrimination. One screening test had already been held. The number of candidates appeared in the first screening test was 510.

The Commission obtained the permission of the Tribunal for holding the second screening test. All the candidates H were given thesame time for preparation. Only because the appellants _} herein were employees at the relevant time, the same by itselfcould not confer on them any special privilege to ask for an extended time. They had no legal rightin relation thereto. Appellants had appeared at the examination without any demur. They did not question thevalid'ty of the said question offixing of the said date before the appropri~te authority. Theyare, therefore, estopped and precludedfrom questioning the selection process. (Para 17] [515-E, F, G; 516-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4868 of 2007. From the Judgment & Order dated 22. 1. 2004 ofthe High Court of Judicature of Andhra Pradesh at Hyderabad in W. P. No. 16970/2003. WITH C. A. Nos. 4869-4873 of 2007. C. S. N. Mohan Rao, P. Veera Reddy and Guntur Prabhakar for the Appellants. D. Bharathi Reddy, D.

Rama Krishna Reddy, Asha G. Nair, It Santhan Krishnan, K. Radha Rani, Praveen K. Pandey, P. Vijaya Kumar, D. Mahesh Babu, Manoj Saxena, Rajnish Kr. Singh and Rahul Shukla for the Respondents. The Judgment ofthe Court was delivered by S. B. SINHA, J. 1. Leave granted. 2. Andhra Pradesh Public Service Commission, on the advice ofthe State of Andhra Pradesh, issued a notification on or about 1. 10. 1992 inviting applications for recruitment to various posts including 34 posts in' the category ofAssistant Director ofAgriculture in the Andhra Pradesh Agricultural Service. Although in the said notification stipulations were, made in respect of grant ofreservation for women to the extent of 30%, no such stipulation was made in respect ofthe vacancies in the category· ofAssistant Director ofAgriculture. This appeal involves the question of' reservation ofwomen in the said category. 3. Appellants herein had been working as Agricultural Officer in \ .. (_ "- Andhra Pradesh Agricultural Service.

They, in tenns ofthe said riqtification, applied for the said posts. A screening test wasto be held therefor. About 510 candidates appeared f -- -- Notification dated 28. 5. 1996, an original application marked as OA No. 83 of2001 was filed by the appellants before the Tribunal on 8. 1. 2001. No order of stay was passed therein. MARRIPATI NAGARAJA v. THE GOVERNMENT OF f 8. The Public Service Commission interviewed the candidates on "' 8. 1. 2001 and 9. 1. 2001 who had been found suitable therefor. An interim order was passed by the Tribunal only on 9. 1. 2001. However, by order dated 1. 8.

2003, the original applications were dismissed by the Tribunal holding that the selections made by the Commission did not call for any interference except to the extent that the selections have to be revised restricting the reservation in favour ofw~men to the extent of30% and wherever vacancies which were reserved to be -y· filled by women candidates could not be filled for want of wo~en candidates, they should be filled up by men in terms ofthe rules existing at the time ofnotification. 9. Writ petition filed by the appellants questioning the same was dismissed. A writ application was also filed by the Andhra Pradesh Public Service Commission challenging the decision ofthe Tribunal restricting 113 reservation for women to 30% instead of 33 %. By reason of the impugned judgment both the writ petitions have been dismissed. 10. Not only the original applicants but the Andhra Pradesh Public Service Commission also are, thus, b~fore us. 11. Mr.

Mohan Rao, learned counsel appearing on behalfofthe appellant, would submit that keeping in view the fact that for the purpo~ ofgiving an opportunity to the appellants herein for appearance in the second test, only a few days' time had been granted by the Commission, the same must be held to be wholly arbitrary. It was furthermore contended that by reason of any notification issued subsequent to the date of ... >advertisement, a provision for reservation ofwomen could not have been made. 12. Learned counsel appearing on behalfof the Andhra Pradesh Public Service Commission, on the other hand, submitted that as on the date ofpublication ofthe notification, selection process was not over, the. Tribunal and consequently the High Court committed an error in opining that reservation for women should have been kept confined to 30% only. · The Notification being GOMs No. 928 dated 6.

10~199S reads thus: ' \ ~ ' ~ "In exercise ofthe powers conferred by the proviso to Article 309 'Irread with clause (4) of Article 16 and Article 335 of the Constitution ofIndia, the Governor ofAndhra Pradesh hereby makes the following amendment to the Andhra Pradesh State and Subordinate Service Rules. 2. The amendments hereby made shall be deemed to have come into force in so far as it relates to the reservation to the extent of 1-- 30% of posts:- · -,.. (a) with effect from the 2nd January, 1984 to each category of O. C. , S. C. , S. T. , and to the unclassified B. Cs; and t"" ·effect. " (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ' ' t ~ ;> ANDHRA PRADESH)" It is now a well settled principle oflaw that the rules which would be applicable for selecting the candidates would be the one which were prevailing at the time ofthe notification. It is also equally well settled that the State may, subject to constitutional limitations, amend the rule with retrospective effect.

Rule 22-A which was applicable as on the date of the said notification reads as under : y "Rule 22-A. Notwithstanding anything contained in these Rules or Special or Ad hoc Rules,- (1) In the matter ofdirect recruitment to posts for which women are better suited than men, preference shall be given to women : (G. O. Ms. No. 472, G. A. , Dt. 11. 10. 85) Provided that such absolute preference to women shall not result in total exclusion ofmen in any category ofposts. -t (2) In the matter ofdirect recruitment to posts for which women and men are equally suited, other things being equal, preference shall be given to women and they shall be selected to an extent of I at least 30% of the posts in each category of 0. C. , B. C. , S. C. and S. T. quota. (3) In the matter ofdirect recruitment to posts which are reserved exclusively for being filled by women they shall be filled by women 1 only (Vide G. O. Ms. 691, G. A. (Ser-0), Dt. 22. 11. 1984, w. e. f. 2. 1. 1984)" • .. 4 y· 13.

The women candidates, in terms thereof, were, therefore, only entitled to preference. By reason of the said notification merely, the1 113 percentage has been increased from 30% to 33 %. It has been given retrospective effect; as the existing sub-rule (2) of Rule 22-A was, substituted. By reason ofthe said Notification, no existing right ofany person has been taken away. In fact, as the selection process was not .. "" over, the question ofapplicability ofthe said notification would have fallen for consideration only when a final selection list was to be made and not prior thereto. }- 14. The State, in exercise ofits power conferred upon it under the proviso appended to Article 309 ofthe Constitution ofIndia, is entitled to make rules with retrospective effect and retro-active operation. Ordinarily, in absence ofany rule and that too a rule which was expressly given a retrospective effect, the rules prevailing as on the date ofthe notification are to be applied.

But if some rule has been given a ~retrospective effect which is within the domain ofthe State, unless the same is set asid~ as being unconstitutional, the consequences flowing '! therefrom shall ensure. In such an event, the applicable rule would not be the rule which was existing but the one which had been validly brought on the statute book from an anterior date. The Tribunal and the High Court, therefore, in our opinion, committed an error in opining otherwise, particularly when the constitutionality ofthe said rule was not in question. 15. In N. T. Devin Katti v. Karnataka Public Service Commission, [1990] 3 SCC 157, this Court categorically held: "11. There is yet another aspect of the question.

Where advertisement is issued inviting applications for direct recruitment to a category ofposts, and the advertisement expressly states that iselection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favoiir of various categories, the selection of candidates in such a case must be made in accordance with the then exist~g rules and government orders. Candidates who apply, I I and undergo written or viva voce test acquire vested right for being •'. considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itselfindicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication ofadvertisement, however he has no absolute right in the matter.

Ifthe recruitment Rules are amended retrospectively during the pendency ofselection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the . language ofthe Rules and its construction to aseertain the legislative intent. The legislative intent is ascertained either by express provisio1iJ or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Detem1ination of this question largelr depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear y that a candidate on making application for a post pursuant to atiJ.

advertisement does not acquire any vested right ofselection, but ifhe is eligible and is otherwise qualified in accordance with the relevant rules and the tem1S contained in the advertisement, he does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. He cannot be deprived ofthat limited right 011 the amendment ofrules during the pendency ofselection unless the amended rules are retrospective in nature. " ' (Emphasis supplied) 16. In this case, the qualification ofa candidate is not in question,. Nobody has been deprived of his right of being considered. Only preferential right had been given to the women. In that view ofthe matter, the High Court, in our opinion, was not correct in taking the said view. 17. The other contention ofMr.

Rao that the candidates had giverl only seven days' time for making preparation to appear in the second screening test, cannot, in our considered view, give rise to a ground for setting aside the entire selection process. The Tribunal did not make any discrimination. One screening test had already been held. The number of candidates appeared in the first screening test was 510. The Commission obtained the permission ofthe Tribunal for holding the second screening test. It issued a notification on 12. 12. 2000 stating that such a test woulq be conducted on 7. 1. 2001. All the candidates were given the same time for preparation. Only because the appellants herein were employees at the relevant time, the same by itselfcould not confer on them any special privilege to ask for an extended time. They had no legal right in relation ; \ 516 SUPREME coμRT REPORTS [2007] 11 S. C. R. thereto. Appellants had appeared at the examination without any demur.

They did not questionthe validity ofthe said question offixing ofthe said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process. 18. For the reasons aforementioned, the appeals of the Andhra Pradesh Public Service Commission are allowed and that ofMarripati Nagaraja is dismissed with costs. Counsel's fee quantified at Rs. 25,000/- (Rupees twenty five t. h. ousand only). 19. The Andhra Pradesh Public Service Commission is hereby directed to finalise the selection process in the light ofthe judgment of this Court as expeditiously as possible and not later than three months from the date ofreceipt ofa copy ofthis judgment. K. K. T. Appeals disposed of. .. i r . • . J jd ,,,'"_,,,; ~. _- '. •. T.