# AP. PUBLIC SERVICE COMMISSION v. BALOJI BADHAVATH & ORS

- **Citation:** [2009] 5 S.C.R. 688
- **Court:** Supreme Court of India
- **Decided:** 2007-12-27
- **Case number:** Civil Appeal No. 2244 of 2009
- **Bench:** S.B. Sinha, Cyriac Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ap-public-service-commission-v-baloji-badhavath-ors-25742
- **Pages:** 33

## Headnote

CONSTITUTION OF IND/A, 1950:
c
Articles 14, 16, 335 - Reservation in recruitment -
Andhra Pradesh Subordinate Service Rules, 1996, 22 and
22A - Validity and applicability of
ANDHRA PRADESH SUBORDINATE SERVICE
D
RULES, 1996:
Rules 4, 22 and 22A - Reservation in appointments -
Protection of - Constitutional validi(y of
LOCUS STAND/:
E
Public Service Commission - Selection Procedure -
Locus standi of the Commission - Held it could maintain the
writ petition.
The Government of Andhra Pradesh used to issue
F orders laying down norms to be adopted for filling up of
vacancies in Group-I services in the State. The selection
process contained preliminary examination and main
examination followed by interview. For the preliminary
and main examination, two criteria used to be adopted,
G one for the general category and the other for the
reserved category. The said procedure came to be
challenged before the High Court. On the basis of the
~
judgment of the High Court, the State issued fresh G.O.
providing that the candidates who had applied for GroupH
688
A.P. PUBLIC SERVICE COMMISSION v. BALOJI
689
BADHAVATH & ORS.
I services would be shortlisted based on preliminary A
,.. ..
examination (Screening Test) in the ratio of 1 :50 to the
total no. of vacancies available at the material time
irrespective of community. In accordance with the said
G.O. a Notification was issued in 2003 calling applications
.....
for Group-I services. The Notification was challenged in
B
a writ petition but without success.
A Notification was issued in 2007 notifying 196
vacancies. 1,68,000 candidates applied and 9800
candidates were shortlisted to take the main examination. c
Some of the unsuccessful candidates approached the
State Tribunal. The application was dismissed by the
Tribunal. Aggrieved, the unsuccessful candidates filed a
writ petition in the High Court. The High Court directed
the Commission to prepare a statement showing the ratio
D
as also category-wise data of the candidates permitted
to appear for the Main examination as per the
Commission; that despite noticing the ratio laid down, in
regard to certain category of candidates, as for example,
OC, BC(C), BC(E), women and physically handicapped
candidates, in its earlier decisions in S. Jafeer Saheb as
E
also in G. Raju, it was held that in the said case as the
ratio of the candidates in respect of those categories fell
much short of 1 :15 ratio, the said GOMs dated 31.12.1997
1
as also the notification dated 27.12.2007 were held to be
ultra vires Articles 14 and 16 of the Constitution of India.
F
Hence the appeal.
Allowing the appeal, the Court
HELD: 1. The Constitution of India lays down
G
provisions both for protective discrimination as also
affirmative action. Reservation of posts for the
r
disadvantaged class of people as also seats in
educational institutions are provided for by reason of
Articles 15 and 16 of the Constitution of India. Reservation
H
690
SUPREME COURT REPORTS
[2009) 5 S.C.R.
A made for the members of the Scheduled Castes,
Scheduled Tribes and other Backward Classes, however,
is subject to Article 335 of the Constitution of India.
Concededly, no citizen of India can claim reservation as
a matter of right. The provisions contained in Articles 15
B and 16 of the Constitution of India are merely enabling
provisions. No writ of or in the nature of mandamus, thus,
could be issued. [Para 17) [705-G, H; 706-A]
C.A. Rajendran v. Union of India & Others, (1968) 1 SCR
721; Indra Sawhney and Others v. Union of India and Others
C 1992 Supp (3) SCC 217; Ajit Singh and Others (//) v. State
of Punjab and Others (1999) 7 sec 209 and State of Punjab
and Others v. Manjit Singh and Others (2003) 11 SCC 559,
relied on.
D
2. Appellant - Commission which has been
1
constituted in terms of Article 315 of the Constitution of
India is bound to conduct examination for appointment
to the services of the State in terms of the Rules framed
by the State. It is, however, free to evolve procedure for
E con

## Text

_Characters 0–39,905 of 58,937. This is a partial read: ask again with offset=39905 for what follows._

[2009] 5 S.C.R. 688
A
AP. PUBLIC SERVICE COMMISSION
v.
BALOJI BADHAVATH & ORS.
(Civil Appeal No. 2244 of 2009)
B
APRIL 8, 200H
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
CONSTITUTION OF IND/A, 1950:
c
Articles 14, 16, 335 - Reservation in recruitment -
Andhra Pradesh Subordinate Service Rules, 1996, 22 and
22A - Validity and applicability of
ANDHRA PRADESH SUBORDINATE SERVICE
D
RULES, 1996:
Rules 4, 22 and 22A - Reservation in appointments -
Protection of - Constitutional validi(y of
LOCUS STAND/:
E
Public Service Commission - Selection Procedure -
Locus standi of the Commission - Held it could maintain the
writ petition.
The Government of Andhra Pradesh used to issue
F orders laying down norms to be adopted for filling up of
vacancies in Group-I services in the State. The selection
process contained preliminary examination and main
examination followed by interview. For the preliminary
and main examination, two criteria used to be adopted,
G one for the general category and the other for the
reserved category. The said procedure came to be
challenged before the High Court. On the basis of the
~
judgment of the High Court, the State issued fresh G.O.
providing that the candidates who had applied for GroupH
688
A.P. PUBLIC SERVICE COMMISSION v. BALOJI
689
BADHAVATH & ORS.
I services would be shortlisted based on preliminary A
,.. ..
examination (Screening Test) in the ratio of 1 :50 to the
total no. of vacancies available at the material time
irrespective of community. In accordance with the said
G.O. a Notification was issued in 2003 calling applications
.....
for Group-I services. The Notification was challenged in
B
a writ petition but without success.
A Notification was issued in 2007 notifying 196
vacancies. 1,68,000 candidates applied and 9800
candidates were shortlisted to take the main examination. c
Some of the unsuccessful candidates approached the
State Tribunal. The application was dismissed by the
Tribunal. Aggrieved, the unsuccessful candidates filed a
writ petition in the High Court. The High Court directed
the Commission to prepare a statement showing the ratio
D
as also category-wise data of the candidates permitted
to appear for the Main examination as per the
Commission; that despite noticing the ratio laid down, in
regard to certain category of candidates, as for example,
OC, BC(C), BC(E), women and physically handicapped
candidates, in its earlier decisions in S. Jafeer Saheb as
E
also in G. Raju, it was held that in the said case as the
ratio of the candidates in respect of those categories fell
much short of 1 :15 ratio, the said GOMs dated 31.12.1997
1
as also the notification dated 27.12.2007 were held to be
ultra vires Articles 14 and 16 of the Constitution of India.
F
Hence the appeal.
Allowing the appeal, the Court
HELD: 1. The Constitution of India lays down
G
provisions both for protective discrimination as also
affirmative action. Reservation of posts for the
r
disadvantaged class of people as also seats in
educational institutions are provided for by reason of
Articles 15 and 16 of the Constitution of India. Reservation
H
690
SUPREME COURT REPORTS
[2009) 5 S.C.R.
A made for the members of the Scheduled Castes,
Scheduled Tribes and other Backward Classes, however,
is subject to Article 335 of the Constitution of India.
Concededly, no citizen of India can claim reservation as
a matter of right. The provisions contained in Articles 15
B and 16 of the Constitution of India are merely enabling
provisions. No writ of or in the nature of mandamus, thus,
could be issued. [Para 17) [705-G, H; 706-A]
C.A. Rajendran v. Union of India & Others, (1968) 1 SCR
721; Indra Sawhney and Others v. Union of India and Others
C 1992 Supp (3) SCC 217; Ajit Singh and Others (//) v. State
of Punjab and Others (1999) 7 sec 209 and State of Punjab
and Others v. Manjit Singh and Others (2003) 11 SCC 559,
relied on.
D
2. Appellant - Commission which has been
1
constituted in terms of Article 315 of the Constitution of
India is bound to conduct examination for appointment
to the services of the State in terms of the Rules framed
by the State. It is, however, free to evolve procedure for
E conduct of examination. While conducting the
examination in a fair and transparent manner as also
following known principles of fair play, it cannot
completely shut its eyes to the constitutional
requirements of Article 335 of the Constitution of India.
F [Para 21) [707-H; 708-A]
~. •
State of Kera/a and Another v. N.M. Thomas and Others
(1976) 2 sec 310, relied on.
3. How the Commission would judge the merit of the
G candidates is its function. Unless the procedure adopted
by it is held to be arbitrary or against the known
principles of fair play, the superior courts would not
ordinarily interfere therewith. The State framed Rules in
the light of the decision of the High Court in S. Jafeer
H
A.P. PUBLIC SERVICE COMMISSION v. BALOJI
691
-f
BADHAVATH & ORS.
Saheb. Per se, it did not commit any illegality. The
A
_,
correctness of the said decision, is not in question having
attained finality. The matter, however, would be different
if the said rules per se are found to be violative of Article
16 of the Constitution of India. Nobody has any
,
_ _.
fundamental right to be appointed in terms of Article 16
B
of the Constitution of India. It merely provides for a right
to be considered therefor. A procedure evolved for laying
down the mode and manner for consideration of such a
right can be interfered with only when it is arbitrary,
discriminatory or wholly unfair. [Para 22] [709-E-G]
c
S. Jafeer Saheb v. State of Andhra Pradesh 1985 (2)
APLJ 380 and G. Raju v. Government of A.P. rep. by its
Secretary, (Writ Petition No. 24247 of 2004 decided on
'"
31.12.2004), referred to.
D
4.1. Indisputably, the preliminary examination is not
a part of the main examination. The merit of the candidate
is not judged thereby. Only an eligibility criterion is fixed.
The papers for holding the examination comprise of
General Studies and Mental Ability. Such a test must be
E
held to be necessary for the purpose of judging the basic
eligibility of the candidates to hold the tests. How and in
what manner the State as also the Commission would
comply with the constitutional requirements of Article 335
'
j
of the Constitution of India should ordinarily not be
F
allowed to be questioned. [Para 25] [712-E, F]
4.2. The proviso appended to Article 335 of the
Constitution, cannot be said to have any application
whatsoever in this case. Lowering of marks for the
candidates belonging to the reserved candidates is not G
a constitutional mandate at the threshold. It is permissible
~
only for the purpose of promotion. Those who possess
the basic eligibility would be entitled to appear at the
main examination. While doing so, in regard to General
H
692
SUPREME COURT REPORTS
(2009] 5 S.C.R.
-
~
A English whereas the minimum qualifying marks are 40%
for OCs, it would be 35% for BCs and 30% for SC/STs
,~
and physically handicapped persons. However, those
marks were not to be counted for ranking. Candidates
belonging to the reserved categories as specified in the
B notification are not required to pay any fee. Their age is
>-
'
relaxed upto five years. It is, theriefore, not correct to
contend that what is given by one hand is sought to be
taken by another. They can, thus, appear in the
examination for a number of times. Indisputably, the right
c conferred upon the writ-petitioners - respondents in
terms of Rules 22 and 22-A of the Andhra Pradesh State
and SuJ>ordinate Service Rules, 1996 was to be protected.
The extent of relaxation has been recognized. By reason
of such a provision, the right to be considered has not
D
been taken away. (Para 25] [712-G, H; 713-A-D]
Chattar Singh v. State of Rajasthan (1996) 11 SCC 7 42
and Pitta Naveen Kumar and Others v. Raja Narasaiah
Zangiti and Others (2006) 10 SCC 261, referred to.
E
5.1. Judging of merit may be at several tiers. It may
undergo several filtrations. Ultimately, the constitutional
scheme is to have the candidates who would be able to
serve the society and discharge the functions attached
to the office. Vacancies are not filled up by way of charity.
F Emphasis has all along been made, times without
-l .
number, to select candidates and/ or students based
upon their merit in each category. The disadvantaged
group or the socially backward people may not be able
to compete with the open category people but that would
G
not mean that they would not be able to pass the basic
m!nimum criteria laid down therefor. (Para 26] (713-E, F]
5.2. Merit is not the monopoly of people living in
"
urban areas. The State must adopt some criteria. It having
regard to its limited resources cannot allow lakhs and
H
A.P. PUBLIC SERVICE COMMISSION v. BALOJI
693
f
BADHAVATH & ORS.
lakhs of candidates to appear at the examination as also A
/'
at the interview. It is bound to devise some procedure to
shortlist the candidates. Rule 4 of the Andhra Pradesh
Public Service Commission Rules of Procedure which
refers to Rules 22 and 22-A of the Andhra Pradesh State
.--1..
and Subordinate Service Rules, 1996 would apply only
B
where shortlisting is done. The first part of the said Rule
empowers the Commission to restrict the number of
candidates to be called for interview to such extent as it
may deem fit. While shortlisting, however, it may hold a
written test or provide for a preferential or higher c
qualification and experience and only for that purpose it
is required to take into account the requirements with
reference to Rules 22 and 22A of the Andhra Pradesh
State and Subordinate Service Rules, 1996 and the rule
.,,
of reservation in favour of local candidates. [Para 28]
D
'
,...
[714-C-E]
Sangram Singh v. Election Tribunal, Kotah, Bhurey Lal
Baya (1955) 2 SCR 1 and Akhil Bharatiya Soshit Karamchari
Sangh (Railway) v. Union of India and Others (1981) 1 SCC
246, held inapplicable.
E
...
Ashoka Kumar Thakur v. Union of India and Others
(2008) 6 sec 1, referred to.
J
"Words and Phrases", Permanent Edition, Volume 22A,
F
page 506 and "Advanced Law Lexicon", 3rd edition,
2005, page 907, referred to.
6. If category-wise statement is prepared, as has
been directed by the High Court, it may be detrimental to
the interest of the meritorious candidates belonging to
G
the reserved categories. The reserved category
"
candidates have two options. If they are meritorious
enough to compete with the open category candidates,
they are recruited in that category. The candidates below
them would be considered for appointment in the
H
694
SUPREME COURT REPORTS
[2009] 5 S.C.R.
A reserved categories. This is now a well-settled principle
of law as has been laid down by· this Court in several
''-
decisions. [Para 37]
Union of India and Anr. v. Satya Prakash and Ors. (2006)
B 4 SCC 550; Ritesh R. Shah v. Dr. YL. Yamul (1996) 2 SCR
>-
695 and R.K. Daria v. Rajasthan Public Service Commission,
(2007) 8 sec 785, relied on.
7. Reservation for women, haindicapped etc. is on a
c
horizontal basis. Reservation to the category of
candidates has to be given irrespective of the class or
category of candidates. A final selection has to be made.
If such a procedure, as directed by the High Court, is to
be taken recourse to, the same would give rise to a
complexity. [Para 39] [717-E-G]
D
8. So far as the question o:f locus standi of the
appeliant to file the Special Leave Petition is concerned,
it has the locus standi. The High Court not only has set
""
aside the GOMs dated 31.12.1997 but it has also set aside
E the notification dated 27 .12.2omr. If the High Court's
judgment is to be implemented, a fresh selection
procedure has to be undertakErn by the appellant.
-
Furthermore, in terms of Order 41, Rule 4 of the Code of
Civil Procedure, the appellate court, in the event, finds
F merit in the appeal at the instance of one of the
,.\
respondents may set aside the entire judgment although
another respondent had not appealed thereagainst. The
Commission had undertaken the task of holding
preliminary examination. It had followed the procedure
laid down in its notification issued in this behalf and the
G GOMs issued by the State. It, therefore, could maintain a
writ petition. [Para 40 and 41] [718-D-F]
~
Thammanna v. K. Veera Reddy Ors. (1980) 4 SCC 62:
(1981) 1 SCR 73 and A.P. Public Service Commission v. P.
H
A.P. PUBLIC SERVICE COMMISSION v. BALOJI .
695
i
BADHAVATH & ORS.
Chandra Mouleesware Reddy (2006) 8 SCC 330, held A
inapplicable.
Case Law Reference:
.
(1968) 1 SCR 721
relied on
•
4.
1992 Supp (3) sec 211 relied on
B
(1999) 1 sec 209
relied on
(2003) 11 sec 559
relied on
.
(1976) 2 sec 310
relied on
c
•
1985 (2) APLJ 380
referred to
(1996) 11 sec 742
referred to
'/"
(2006) 10 sec 261
referred to
D
(1955) 2 SCR 1
held inapplicable
(1981) 1 sec 246
held inapplicable
-I
(2008) 6 sec 1
referred to
E
(2006) 4 sec 550
relied on
"
(1996) 2 SCR 695
relied on
(2001) 8 sec 785
relied on
~ >
(1980) 4 sec 62
F
(1981) 1 SCR 73
held inapplicable
"'
(2006) 8 sec 330
held inapplicable
--.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. G
1
2244 of 2009.
~
r
From the Judgment & Order dated 23.7.2008 of the High
Court of Andhra Pradesh in Writ Petition No. 16029 of 2008.
H
696
SUPREME COURT REPORTS
[2009] 5 S.C.R.
A
Guntur Prabhakar for the Appellants.
B
D. Mahesh Babu, D. Bharathi Reddy and C.S.N. Mohan
Rao for the Respondents.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
2. Andhra Pradesh Public Se1rvice Commission is before
us aggrieved by and dissatisfied with a judgment and order
C dated 23.07.2008 passed by a Division Bench of the Andhra
Pradesh High Court in Writ Petition No. 16029 of 2008.
3. The Government of Andhra Pradesh used to issue
orders laying down norms to be adopted for filling up of
vacancies in Group - I services in the State comprising of
D Deputy Collectors, Commercial Tax Officers, Assistant
Prohibition and Excise Superintendents, Assistant
Commissioner of Labour, Deputy Superintendent of Police
Category-2, Divisional Fire Officers, District Registrars,
Assistant Audit Officer and Assistant Treasury Officer/ Assistant
E Accounts Officer. The selection process takes place in two
phases; the first being holding of an examination for the
purpose of shortlisting of the candidates and the second being
holding of the main examination followed by interview.
F
4. Both for preliminary examination as also the main
examination, two criteria used to be adopted; one for the
general category candidates and other for the reserved
category candidates.
5. Validity of the said procedure came up for consideration
G before a Division Bench of the Andhra Pradesh High Court as
far back in the year 1984 in S. Jafeer Saheb v. State of Andhra
Pradesh [1985 (2) APLJ 380). Indisputably, a similar question
came up for consideration again in G. Raju v. Government of
A.P. rep. by its Secretary [Writ Petition No. 24247 of 2004
H decided on 31.12.2004)
·-
-
A.P. PUBLIC SERVICE COMMISSION v. BALOJI
697
BADHAVATH & ORS. [S.B. SINHA, J.]
1
In S. Jafeer Saheb (supra), the contention of the State was A
that the reservation of posts used to be made while admitting
the candidates for examination itself and not in the final
selection in the ratio of 1 :15. The question which, thus, posed,
was as to whether admission of candidates for the main
.. -4 .
examination by applying compensatory preference even at the
B
stage of admission in the main examination is violative of
Articles 14 and 16 of the Constitution of India. Taking note of
the provisions contained in Articles 14, 16 and 335 of the
Constitution of India, the High Court held:
"11. The purpose of holding a screening test is to ensure c
the basic standard of eligibility of the candidates and even
at the stage of admission to the main examination the rule
of reservation of posts cannot be applied. Reservation for
applicants is not permissible under Art. 16(4).
D
12. The learned Advocate-General submits that if
reservation rule is not followed even at the stage of
admitting candidates for the main examination, a reserved
vacancy is likely to remain unfilled. It is nobody's case that
as many candidates as there are reserved vacancies have
E
not been qualified for the main examination. Is there any
-
rule of relaxation based on reservation for a pass in the
H.S.C. Examination or Intermediate Examination or B.A.
Examination? There can be no relaxation or waiver of a
).
basic standard of performance. There can be no
F
compromise with the maintenance of administrative
efficiency which is barred by Art. 335 of the Constitution.·
It was furthermore held:
"14. Time is now ripe for Courts to lay down the limits to G
the lowering of standards for the purpose of compensatory
preference. The intensity of compensatory preference
cannot be at the expense of even-handedness and merit
and cannot proliferate to such an extent as to prove fatal
to the basic proficiency and efficiency. The intensity must
H
698
A
B
c
D
E
SUPREME COURT RIEPORTS
[2009] 5 S.C.R.
vary depending on the nature of the compensatory
discrimination whether it is primarily for individual benefit
or whether the quality of public service is directly affected.
Krishna Iyer, J., observed in State of Kerala v. N.M. Thomas
that "to relax basic qualification is to compromise with the
minimum administrative efficiency and is presumably
barred by Art. 335". Lowering of standards for the purpose
of compensatory discrimination is limited to competing
commitments to efficient administration.
Public interest demands concern for quality and
prohibits waiver or abandonment of quality. In Janki Prasad
v. State of Jammu & Kashmir, the Supreme Court
observed that the setting of absurdly low minimal scores
made it a "travesty of selection".
***
***
**"r
16 ... When a candidate is ineligible or does not come up
to a basic standard, no relaJCation can be granted. As
already pointed out such concession of preference based
on reservation is not granted for a pass in the H.S.C.
Examination or Intermediate Examination or BA Degree
Examination, because they are eligibility test and not
proficiency test."
6. Indisputably, pursuant to or in furtherance of the said
F judgment of the High Court datedl 28.12.1984, the State of
Andhra Pradesh issued fresh G.O.Ms. No. 570 dated
31.12.1997, providing that the candidates who had applied for
Group - I services would be shortlisted based on a preliminary
examination (Screening Test) in the ratio of 1 :50 to the total
G number of vacancies available at the material time irrespective
of community, the relevant portions whereof read as under:
H
" ... The number of candidates to be admitted to the Written
examination (Convention Type) would be 50 (fifty) times to
the total number of vacancies available at material time
-
'!'
)r
~
·~
AP. PUBLIC SERVICE COMMISSION v. BALOJI
699
j
BADHAVATH & ORS. [S.B. SINHA, J.]
irrespective of communities.
A
3. The papers except paper 2, i.e., General English may
be answered in English or Telugu or Urdu chosen by the
candidates. However, a candidate is not permitted to write
part of the paper in English and part of it in Telugu.
B
4. The paper on General English is a qualifying one and
the standard of this paper is that of S.S.C. The minimum
qualifying marks in this paper are 40% for O.Cs. 35% for
B.Cs. and 30% for SC/STs and P.H. These marks are not
counted for ranking.
c
5. In the event of the S.C. and S.T. candidates not coming
up for selection with the existing minimum prescribed for
the selection in the competitive examination conducted by
the commission, their selection shall be considered on the
D
basis of rank with reference to their performance in the
written and Oral competitive examination."
7. Indisputably, when in terms of the said GOMs, a
notification in Advertisement No. 21 of 2003 calling applications
E
for Group - I Services was issued in the year 2003, another
writ application came to be filed by G. Raju and seven others
questioning the legality thereof.
The Andhra Pradesh High Court by a judgment an order
~
dated 31.12.2004 passed in Writ petition No. 24247 of2004,
F
opined:
"13. The contention of the learned counsel for the
petitioners is that at least the ratio of 1 :50 should be
maintained in respect of each post reserved for community
G
reservation, in such an event, it will enable the reserved
candidates to effectively participate in the selection and
candidates from out of them would be selected within the
reservation category, but this contention though appears
to be appealing, cannot be accepted. There cannot be any
H
upper limit. If this has to be taken into consideration, then
700
SUPREME COURT REPORTS
{2009] 5 S.C.R.
A
1 :50 ratio should be considered to be appropriate and
reasonable, and inasmuch as it is assured by the
A.P.P.S.C. that there will niot be any carry forward
vacancies, we are not inclined to interfere with the order
B
passed by the Tribunal."
However, in that writ petition, the validity of GOMs dated
31.12.1997 was not in question.
8. A notification bearing No. 31 of 2007 was issued for
Group - I Services Direct Recruitment (General) on 27.12.2007
C notifying 196 vacancies; inter a/ia laying down:
D
E
F
G
"3. Caste & Community: Community Certificate issued by
the competent authority in terms of G.O.Ms No. 58, SW(J)
Dept., dt: 12/5/97 should be submitted at appropriate time.
As per General Rules for State and Subordinate Service
Rules, Rule 2(28) Explanation: - No person who professes
a religion different from Hinduism shall be deemed a
member of scheduled caste. BCs, SCs & STs belonging
to other States are not entitled lfor reservation, candidates
belonging to other States shall pay the prescribed fee of
Rs. 120/- (One hundred and Twenty only) through 1.P.O.
Otherwise such applications will not be considered and no
correspondence on this will be entertained.
4. Reservation for local candidaltes is not applicable as per
concerned Departmental Special Rules, except Post
Code - 8, i.e., AAO in AP State Audit Service.
5. Reservation and eligibility in terms of General Rule 22
& 22-A of AP. State and Subordinate Service Rules are
applicable.
***
***
***
10. The Reservation to Women will apply as per Generat
Rules. For P.C. No. 066, women candidates are not
H
eligible."
::
A.P. PUBLIC SERVICE COMMISSION v. BALOJI
701
• .,
BADHAVATH & ORS. [S.B. SINHA, J.]
Relaxation of age was granted for the SC/ST and BCs
A
candidates by five years. The reserved categories of
candidates were exempted from payment of fees.
9. Pursuant to or in furtherance of the said notification,
~
1,68,000/- candidates applied. A preliminary examination was
B
held for all the candidates. Having regard to the ratio of the
number of candidates to be admitted for main examination
being 1: 50, 9,800 candidates were shortlisted to take the main
examination.
10. Respondents herein appeared at the said preliminary c
,
examination without any demur whatsoever. They, however,
having not been shortlisted filed an original application before
the Andhra Pradesh State Administrative Tribunal. The said
original application was dismissed.
.,
D
11. Aggrieved by and dissatisfied therewith, they filed a
writ petition before the Andhra Pradesh High Court which by
reason of the impugned judgment has been allowed. The
Commission was impleaded as a party in the writ petition.
The High Court, however, directed the Commission to
E
prepare a statement showing the ratio as also category-wise
data of the candidates permitted to appear for the Main
examination as per the Commission. Despite noticing the ratio
)
laid down, in regard to certain category of candidates, as for
example, OC, BC(C), BC(E), women and physically
F
handicapped candidates, in its earlier decisions in S. Jafeer
Saheb (supra) as also in G. Raju (supra), it was held that in
the said case as the ratio of the candidates in respect of those
categories fell much short of 1 :15 ratio, the said GOMs dated
31.12.1997 as also the notification dated 27.12.2007 were held
G
to be ultra vires Articles 14 and 16 of the Constitution of India.
1"
It was stated that both in S. Jafeer Saheb (supra) as also
in G. Raju (supra), the GOMs No. 570 dated 31.12.1997 was
not challenged at all.
H
702
SUPREME COURT REPORTS
[2009] 5 S.C.R.
A
The notification dated 27.122007 was said to be contrary
B
to the principles of natural justice as also Articles 14 and 16 of
the Constitution of India on the following premise:
(i)
Non-implementation of community-wise reservation
attracts the wrath of Article 16 of the Constitution
of India.
(ii)
The right of reservation must be recognized at all
levels. Although S. Jaf13er Saheb (supra) as also G.
Raju (supra) lay down good law but as community
C
- wise reservation did not fall for consideration
therein, the said decisions were not binding upon
it.
D
(iii)
Non-fixation of a cut-off mark for each category of
community would also lbe violative of Articles 14 and
16 of the Constitution of India.
12. Mr. L. Nageshwara Rao, learned senior counsel
appearing on behalf of the appellant and Mr. R. _
Sundaravaradhan, learned senior counsel appearing on behalf
E of the respondent - State, would contend:
F
G
(i)
As Article 16( 4) of the Constitution of India provides
for an enabling provision, no writ of mandamus
could be issued.
(ii)
Right of the candidates being only to be considered
for selection in terms of the extant rules, the High
Court committed an error in passing the impugned
judgment.
(iii)
The impugned judgment would be detrimental to
the interests of the meritorious candidates
belonging to the reserved category.
(iv)
The writ petitioners - respondents having failed to
H
qualify in the preliminary examination, are estopped
AP. PUBLIC SERVICE COMMISSION v. BALOJI
703
f
BADHAVATH & ORS. [S.B. SINHA, J.]
and precluded from questioning the validity of GOMs
A
No. 570 or the notification dated 27.12.2007 issued
by the appellant - Commission.
(v)
Reservation for women and physically handicapped
4,
persons being an incident of horizontal reservation
B
and not a vertical reservation, the impugned
judgment cannot be sustained.
13. Mr. P.P. Rao, learned senior counsel appearing on
behalf of the respondents, however, while conceding that the c
writ petitioners - respondents cannot claim any right of
reservation and no writ of mandamus can be issued,
contended:
~
(i)
As the Constitution contemplates upliftment of
x
weaker sections by providing a percentage of seats
D
for employment in the State and having regard to
the fact that both clauses (1) and (4) of Article 16
of the Constitution of India provide for valid
classification, the impugned judgment should not be
interfered with.
E
(ii)
Judging of the merit of the candidates having
regard to the provisions of Article 335 of the
Constitution of India per se should not allow the
~
)
State and the Commission to stop all the
candidates at the first gate and then prevent them
F
from appearing at the main examination as thereby
constitutional scheme to provide reservation would
be frustrated to a great extent.
(iii)
The means to achieve the constitutional object and
G
the goals should not be defeated by inserting
-r
procedural provisions as a result whereof what is
being given by one hand should not be permitted
to be taken away by the other.
(iv)
Reservation made in favour of women, physically
H
704
SUPREME COURT REPORTS
[2009] 5 S.C.R.
A
handicapped, etc., although pertains to horizontal
reservation, the candidates of the said categories
cannot be treated differently.
(v)
A candidate only by appearing in an examination
B
cannot waive his fundamental or a statutory right.
(vi)
The State having provided for reservation in terms
of Rules 22 and 22-A of the Andhra Pradesh State
and Subordinate Service Rules, 1996 and
furthermore, such a right having also been created
c
in terms of Regulation 14-A of the Andhra Pradesh
Public Service Commission Regulations, 1963, the
writ petitioners - respondents obtained an
indefeasible right for consideration of their
candidature so as to enable them to compete with
D
other candidates for appointment in the said post
)(
which cannot be permitted to be taken away by
reason of the impugned GOMs No. 570 and the
notification dated 27.12.2007.
E
(vii) The expression "irrespective of communities" used
in GOMs No. 570 even otherwise cannot be read
in such a manner so as to violate the constitutional
scheme, as reservation is not based on any religion
or race, particularly in view of the fact that the
F
makers of the Constitution of India thought of a
• ..
casteless and classle:ss society.
(viii) The High Court having declared the GOMs No. 570
as unconstitutional and the State having not
preferred any special leave petition thereagainst,
G
the Andhra Pradesh Public Service Commission
cannot be said to have any locus standi to maintain
this appeal.
..
14. The vacancies which were to be filled up by the State
H pertained to Group - I services. The State indisputably subject
AP. PUBLIC SERVICE COMMISSION v. BALOJI
705
7
BADHAVATH & ORS. [S.B. SINHA, J.]
to the constitutional limitations having regard to its power A
contained in the proviso appended to Article 309 of the
Constitution of India is entitled to frame rules laying down the
mode and manner in which vacancies are to be filled up.
.-.J.
15. If the State has the legislative competence to frame
B
rules, indisputably, it can issue governmental orders in exercise
of its power under Article 162 of the Constitution of India. It
adopted one procedure. It was held to be ultra vires by the
Andhra Pradesh High Court in S. Jafeer Saheb (supra). It
attained finality. The State amended the procedure in the light c
of the said decision by GOMs No. 570 dated 31.12.1997. No
new policy was laid down which can be said to be contrary to
or inconsistent with the decision of the Andhra Pradesh High
'
Court in S. Jafeer Saheb (supra). A notification containing
)(
similar provisions issued by the Andhra Pradesh Public Service
D
Commission in 2003 was questioned. It may be true that the
validity of the GOMs itself was not questioned but if the terms
of the notification were held to be unconstitutional, GOMs could
have also been declared as such.
16. The Division Bench of the High Court indisputably was
E
bound by the said decision. It, however, proceeded to examine
the constitutionality of the GOMs dated 31.12.1997 and the
notification dated 27 .12.2007 inter a/ia on the premise that the
)
validity of the said GOM and the notification was not tested on
the touchstone of Articles 14 and 16 of the Constitution of India.
F
-.I<
17. The Constitution of India lays down provisions both for
protective discrimination as also affirmative action. Reservation
of posts for the disadvantaged class of people as also seats
in educational institutions are provided for by reason of Articles
G
15 and 16 of the Constitution of India. Reservation made for
the members of the Scheduled Castes, Scheduled Tribes and
..-
other Backward Classes would, however, is subject to Article
,
335 of the Constitution of India. Concededly, no citizen of India
can claim reservation as a matter of right. The provisions
contained in Articles 15 and 16 of the Constitution of India are
H
706
SUPREME COURT REPORTS
[2009] 5 S.C.R.
A merely enabling provisions. No writ of or in the nature of
mandamus, thus, could be issued. [See C.A. Rajendran v.
Union of India & Others, (1968) 1 SCR 721 at 731-733, Indra
Sawhney and Others v. Union of India and Others [1992 Supp
(3) SCC 217, para 165 to 169, 428 to 432, 741 and 742, Ajit
B Singh and Others (II) v. State of Punjab and Others (1999) 7
SCC 209, para 32 to 39, State of Punjab and Others v. Manjit
Singh and Others (2003) 11 SCC ei59, para 7 and 12)
18. The State, however, have made provisions for
C reservation. Indisputably, the appellant - Commission has
made regulations known as Andhra Pradesh Public Service
Commission Regulations, 1963, Regulation 14-A whereof
reads as under:
D
"It shall be necessary for the Commission in the matter of
recruitment to the posts and se,rvices to strictly adhere to
wherever applicable the provisions contained:
(i)
in the General Rule 22 and 22-A;"
19. The rules of procedure for holding the said examination
E have also been prescribed known as the Andhra Pradesh
Public Service Commission Rules of Procedure; Rule 4
whereof reads as under:
F
G
H
"4. Where a direct recruitment is to be made by selection,
i.e., after interview only, and where the number of qualified
petitioners is unduly large having regard to the actual
number of vacancies available, the Commission may
restrict the number of candidates to be called for interview
to such extent as it may deem fit. Such shortlisting may
be done by the Commission either by holding a written test
or on the basis of preferential or higher qualifications and
experience and after taking into account the requirements
with reference to the Rules 22, 22-A of the General Rules
for State and Subordinate Services and the Rule of
reservation in favour of local candidates where they are
t
y
)
AP. PUBLIC SERVICE COMMISSION v. BALOJI
BADHAVATH & ORS. [S.B. SINHA, J.]
applicable."
707
A
20. The State of Andhra Pradesh in exercise of its power
conferred upon it by the proviso appended to Article 309 of the
Constitution of India framed rules known as the Andhra Pradesh
State and Subordinate Service Rules, 1996. Rules 22 and 22B
A thereof indisputably provide for reservation for appointments
to a service, class or category in favour of Scheduled Castes,
Scheduled Tribes, Backward Classes, women, physically
handicapped, meritorious sportsmen, ex-servicemen, etc.
Special rules and adhoc rules have also been made for
reservation of women by way of Rule 22-A thereof, stating:
C
"22-A.
Women
reservation
in
appointment:
Notwithstanding anything contained in these rules or
special rules or Adhoc Rules:
(1) In the matter of direct recruitment to posts for which
women are better suited than men, preference shall be
given to women:
D
Provided that such absolute preference to women
shall not result in total exclusion of men in any category of E
posts.
(2) In the matter of direct recruitment to posts for which
women and men are equally suited, there shall be
reservation to women to an extent to 33 1/3% of the posts
in each category of Open Competition, Backward Classes
(Group - A), Backward Classes (Group - B), Backward
Classes (Group - C), Backward Classes (Group - D),
Scheduled Castes, Scheduled Tribes and Physically
Handicapped and-Ex-servicemen quota: .. ."
21. Appellant - Commission which has been constituted
in terms of Article 315 of the Constitution of India is bound to
conduct examination for appointment to the services of the
State in terms of the Rules framed by the State. It is, however,
F
G
H
708
SUPREME COURT REPORTS
[2009) 5 S.C.R.
A free to evolve procedure for conduct of examination. While
conducting the examination in a fair and transparent manner
as also following known principles of fair play, it cannot
completely shut its eyes to the constitutional requirements of
B
Article 335 of the Constitution of lnidia, which reads as under:
"335 - Claims of Scheduled Castes and Scheduled Tribes
to services and posts
The claims of the members of the Scheduled Castes and
the Scheduled Tribes shall be taken into consideration,
C
consistently with the maintenance of efficiency of
administration, in the making of appointments to services
and posts in connection with the affairs of the Union or of
a State:
D
E
F
G
H
Provided that nothing in this article shall prevent in making
of any provision in favour of the members of the Scheduled
Castes and the Scheduled Tribes for relaxation in
qualifying marks in any examination or lowering the
standards of evaluation, for reservation in matters of
promotion to any class or classes of services or posts in
connection with the affairs of the Union or of a State."
In State of Kera/a and Another v. N.M. Thomas and
Others [(1976) 2 SCC 310), this Court opined:
"41. Article 335 of the Constitution states that claims of
members of the Scheduled Castes and scheduled tribes
shall be taken into consideration in the making of
appointments to the services and posts in connection with
affairs of the State consistent with the maintenance of
efficiency of administration. The impugned rule and the
impugned orders are related to this constitutional mandate.
Without providing for relaxation of special tests for a
temporary period it would not have been possible to give
adequate promotion to the lower division clerks belonging
to Scheduled Castes and scheduled tribes to the posts of
)(
\
A.P. PUBLIC SERVICE COMMISSION v. BALOJI
709
i'
BADHAVATH & ORS. [S.B. SINHA, J.]
upper division clerks. Only those lower division clerks who
A
L
were senior in service will get the benefit of the relaxation
contemplated by Rule 13-M and the impeached orders.
Proipotion to upper division from lower division is governed
by the rule of seniority subject only to passing of the
'
-..(
qualified test. The temporary relaxation of test qualification
B
made in favour of Scheduled Castes and scheduled tribes
is warranted by their inadequate representation in the
services and their overall backwardness. The classification
~
of the members of the Scheduled Castes and scheduled
'
tribes already in service made under Rule 13-M and the c
challenged orders for exempting them for a temporary
period from passing special tests are within the purview
of constitutional mandate under Article 335 in
consideration of they claims to redress imbalance in public
')(
service and to bring about parity in all communities in
D
public services."
"
22. How the Commission would judge the merit of the
candidates is its function. Unless the procedure adopted by it
is held to be arbitrary or against the known principles of fair
play, the superior courts would not ordinarily interfere therewith.
E
The State framed Rules in the light of the decision of the High
Court in S. Jafeer Saheb (supra). Per se, it did not commit any
illegality. The correctness of the said decision, as noticed
..
hereinbefore, is not in question having attained finality. The
..
J
matter, however, would be different if the said rules per se are
F
'
found to be violative of Article 16 of the Constitution of India.
Nobody has any fundamental right to be appointed in terms of
Article 16 of the Constitution of India. It merely provides for a
right to be considered therefor. A procedure evolved for laying
down the mode ·and manner for consideration of such a right
G
can be interfered with only when it is arbitrary, discriminatory
-y
or wholly unfair.
23. We may notice that in Chattar Singh v. State of
Rajasthan [(1996) 11 SCC 742], Rule 13 of the Rajasthan
H
710
SUPREME COURT REPORTS
[2009] 5 S.C.R.
A State and Subordinate Services (Direct Recruitment by
Combined Competitive Examinations) Rules, 1962 prescribing
the mode of conducting preliminary as also main examination
had been interpreted, opining :
B
" ... What requires to be done is that the Public Service
Commission has to consider the number of vacancies
notified or likely to be filled in the year of recruitment for
which notification was published. Then candidates who had
appeared for the Preliminary Examination and qualified for
c
Main Examination are to be screened by the test. The
object is to eliminate unduly long list of candidates so that
opportunity to sit for Main Examination should be given to
candidates numbering 15 times the notified posts/
vacancies in various services; in other words for every one
D
post/vacancy there should be 15 candidates. There would
be wider scope to get best of the talent by way of ·
)C
competition in the examination. The ultimate object is to
get at least three candidates or as is prescribed, who may
be called for viva voce.