MOHD. SIDDIQ ALI versus HIGH COURT OF A.P. THROUGH REGISTRAR AND ORS.

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

p. 480

The High Court of Andhra Pradesh issued a notification on 23. I 0 .1996 for making appointments to the posts of District Munsiff and the relevant part of the notification which has a bearing on the controversy in dispute is reproduced below : c "Notification For appointment to the post of District Munsiffs. Applications are invited for 200 posts of District Munsiffa of which 27 by limited Recruitment-backlog vacancies and 173 by General D Recruitment in the A.P. State Judicial Services. VACANCY POSITION : Note : L The General Recruitment vacancies are subject to the rule of Sp!. Representation under Rule I 0 of the Sp!. Rules for A.P. State Judicial Service and also Rule 22(A){2) of the A.P. State and Subordinate Service Rules. 2 The High Court reserves the right to increase or decrease the number of vacancies after issue of this notification, if necessary." After a written examination was held, candidates were called for interview keeping iri view the number of vacancies and the result was declared on 18.3.1997. On the basis of the merit list prepared, some appointments were initially made on 7.4.1998. Mohd. Siddiq Ali (appellant in C.A. No.3006 of 200 I) filed Writ Petition No.35876 of 1998 challenging the selection and appointment of some women candidates and candidates belonging to Scheduled Castes and Scheduled Tribes. The writ petition was dismissed in limine by a Division Bench of the High Court (B. Subhashan Reddy and Y.V. Narayana, JJ) on 18.1.1999 and the order passed by the Court reads as under: "This writ petition challenges the women reservation in the matter of selection of Munsiff Magistrates as also backlog for Scheduled Castes and Scheduled Tribes candidates, In so far as backlog of SC and ST candidates is concerned, it is a well settled law that such a backlog is permissible under the Constitution Scheme. In so far as women reservation is concerned, a Division Bench of this Court by judgment dt. 31.8.1998 in W.P. 18307/ 98 and batch had maintained women reservation on the ground of the same being not challenged and that challenge could not sustain in auxiliary proceedings. The Division Bench, however, has set aside the action regarding carry-forward in the matter of women candidates, Taking a clue from the judgment of the said Division Bench that the action in providing reservation to women was not challenged, this writ petition has been filed, but the same is hit by !aches for the reason that the notification was issued far back in 1996, selection process went through and selections have been finalised and appointments have been made. In the circumstances, this writ petition is dismissed. No costs." Civil Appeal No.3006 of 200 I has been filed challenging the aforesaid order of the High Court.

pp. 480–481, margin B

Another writ petition being Writ Petition No.32021of1998 was filed by S. Sreeramulu and D.D.V.S.N. Prasad challenging the same selection and appointment of women candidates. The writ petition was dismissed by a Division Bench (P. Venkatarama Reddi and Bilal Nazlci, JJ) on 2.12.1998 and the order passed by the Cqurt reads as under : "We are not inclined at this distance of time to entertain this Writ Petition directed against the selection of candidates for the posts of District Munsiffs which was finalised long back and pursuant to which appointment orders were issued. That apart, on the basis of the information furnished by the panel counsel for the High Court, the I st petitioner has no chance of selection even if his contention is accepted. The writ petition in so far as the 2nd petitioner is concerned, is dismissed as he has separate cause of action and he should have filed a separate writ petition. In fact, it is noticed that the affidayit is filed by the I st petitioner only. The writ petition is, therefore, dismissed at · the admission stage." Civil Appeal No.3007 of 200 I has been filed order of the High Court.

pp. 481–482, margin E

Learned counsel for the appellant has submitted the Andhra Pradesh State and Subordinate Service while making the selection to the post of District contended that Rule 22-A(2) of the aforesaid Rule~ reservation to the extent of 30% in favour of women rule of preference and, therefore, the selection made after applying a policy of reservation in their favour appellant in civil appeal no.3006 of 2001 has filed Subordinate Rules in the additional documents filed Rule 22-A of the Rules is reproduced below : ''.22-A. Notwithstanding anything contained . or Ad hoc Rules (I) In the matter of direct recruitment are better suited than men, preference shall Provided that such absolute preference in total exclusion of men, in any category (2) In the matter of direct recruitment and men are equally suited, other things being be given to women and they shall be selected 30% of the posts in each category ofO.C., (3) In the matter of direct recruitment exclusively for being filled by women they only."

p. 482, margin A

Learned counsel has submitted that the aforesaid consideration before this Court in Government of A. Anr., [1995] 4 SCC 520 and it was held therein that by the Rule will come into operation only when same number of marks as the Rule uses the expression equal". This position was made clear in the judgment of headnote (B) of the report on which great emphasis course of arguments is being reproduced below "Rule 22-A(2) of the A.P. State and Subordinate not provide reservation for women in the normal sense of the term. A It is a rule for a very limited affirmative action. The preference contemplated under Rule 22-A(2) will come into operation at the initial stage when in the selection test for the post in question, candidates obtain the same number of marks or are found to be equally meritorious. Rule 22-A(2) prescribes a minimum preference of 30% for women, B clearly contemplating that for the remaining posts also, if women candidates are available and can be selected on the basis of other criteria of selection among equals, which are applied to the remaining candidates, they can also be selected. The phrase "other things being equal" does not refer to these other norms for choosing from out of equally meritorious persons. The 30% rule is also not inflexible. In a C situation where sufficient number of women are not available, preference that may be given to them could be less than 30%. The rule is thus within the ambit of Article 15(3) and is not violative of Articles 16(2) and 16(4) which have to be read harmoniously with Articles 15(1) and 15(3)."

pp. 482–483, margin F

We have considered the submission made by learned counsel for the appellant and have examined the record. It is rather unfortunate that what is placed on record is the unamended A.P. State and Subordinate Rules and arguments have been advanced on its basis. Rule 22-A(2) of the aforesaid Rules has undergone several amendments and this position was noticed by E a Division Bench of A.P. High Court (P. Venkatarama Reddi and R.M. Bapat, JJ) in Writ Petition No.18307 of 1998 filed by Modh. Iqbal and Ors. wherein the same selection of District Munsiff was challenged. The judgment in this case was delivered on 31.8.1998 i.e. prior to the filing of the two writ petitions in the High Court and.the same is reported in 1998 (5) ALD 590. The amendment in the Rules were considered in para 5 of the judgment which reads as under: F "5. Sub-rule (2) of Rule 22-A of A.P. State and Subordinate Service Rules (hereinafter referred to as APSS Rules) as amended by G.O.Ms.No.237 dated 28.5.1996 provided for the first time reservation for women to the extent of 33-I/3% of posts in each category i.e., OCs, BCs, SCs, STs, Physically Handicapped and Ex-servicemen with effect G from 8.3 .1996. This was in modification of the earlier rule of preference in favour of women. It is laid down by means of a proviso that if sufficient number of women candidates are not available, the vacancies shall be filled by men. Jhe Rule in the same form was retained when the APSS Rules were further amended by G.0. No.436, dated 15.10.1996. H A few months thereafter, Rule by G.O. No.65, dated 15.2.1997. deleted. Simultaneously, there Rule 22 placing the women candidates Physically handicapped candidates the procedure for limited requirement Note (2) was added to Rule "principle of carry forward of with effect from 28. I 0.1996". roster points for women candidates The Bench struck down the forward the unfilled vacancies reserved disturbing the selections and appointments made on the ground that Rule 22-A(2) adopt in the recruitment notification forward of vacancies relating to women issued that those vacancies should be of merit and subject to the observance of roster reservation applicable to Scheduled classes. In view of the amendment learned counsel for the appellant has

pp. 483–484

In Civil Appeal No.3006 of2001, the High Court on the ground that on 23.10.1996, but the writ petition was challenged was filed in November, was highly belated. Learned counsel writ petition should not have been support of his submission learned counsel v. State of Maharashtra, AIR (1974) rule which says that a Court may not not a rule of Jaw but a rule of practice of discretion and there is no inviolable Court must necessarily refuse to entertain of discretion to be followed on the facts aforesaid authority it is submitted that the writ petition on the ground of contention raised. In the authority cited, seniority of Mamlatdars/Tehsildars in by virtue of the provisions of the States Reorganization Act, 1956. The inter se seniority of persons holding the same rank has a great bearing at the stage of promotion to a higher post and in such a situation it was heid that in the facts and circumstances of the case, the writ petition could not be dismissed on the ground of !aches. In the present case the persons selected had already joined as District Munsiffs long back and the challenge has been raised to their selection after the decision had been rendered by the A.P. High Court in Writ Petition No.18307of1998 (Mohd. Iqbal Ahmad and Ors. v. High Court of A.P.) on 31.8.1998. We, therefore, do not find any infirmity in the order passed by the High Court.

pp. 484–485, margin E

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

p. 485, margin C

Regarding the writ petitions which have been directly filed in this Court under Article 32 of the Constitution, it may be noted that Writ Petition (C) No.504of1999 was filed on 6.11.J 999, Writ Petition (C) No.22 of 200 I was filed on 8.11.2000, Writ Petition (C) No.554 of 2001 and Writ Petition (C) No.555 of2001 were filed on 19.10.2001. We are of the opinion that these writ petitions, wherein challenge has been made to the notification issued by the High Court on 23 .10.1996, are highly belated and are liable to be dismissed on the ground of !aches.

p. 485, margin D

For the reasons discussed above, all the Civil Appeals and Writ Petitions are dismissed. K.K.T. Appeals and petitions dismissed.

p. 485, margin E