STATE OF ANDHRA PRADESH Vs. REPRESENTED BY ITS PRINCIPAL SECRETARY, HOME (POLICE) DEPARTMENT, SECRETARIAT BUILDING

JUDGEMENT

(1.) 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 dtd. 20/12/2011 of the Hon'ble Vice Chairman (HVC) of the APAT, constituting as a Bench under Sec. 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.Background The State Level Police Recruitment Board (hereafter, the Board) issued a recruitment notification, dtd. 15/11/2008, inviting applications from eligible male and female candidates for limited 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 21/2/2009 the selectees were placed under training. 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. 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 28/2/2011. While doing so G.O.Ms.No.3, dtd. 4/4/2006 was set aside and a further direction was given to fix the creamy layer as per the Government of India (GoI) Memo, dtd. 25/10/2008, i.e., Rs.4.5 lakhs and consider the case of the 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. 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.Submissions The Government Pleader for Services - I made four main submissions as follows. 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 S.S.Rathore v State of Madhya Pradesh , (1989) 4 SCC 582 N.Balakrishnan v M.Krishnamurthy, (1998) 7 SCC 123 Government of Andhra Pradesh v S.Yellamanda , 2002 Suppl. (1) ALD 137 (DB) Ghulam Rasool Lone v State of Jammu and Kashmir, (2009) 15 SCC 321 and State of Orissa v Rajkishore Nanda, (2010) 6 SCC 777. ii) The Original Applications ought to have been dismissed for non-joinder of necessary parties which is fatal. Elaborating 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 Supreme Court in Public Service Commission v Mamta Bisht, (2010) 12 SCC 204. iii) The applicants sought a direction to the Board to appoint them against BC vacancies as per the notification dtd. 28/3/2008. 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 dtd. 15/12/2008 which was not the subject matter of the Original Applications. 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 Sec. 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 Sec. 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 justified as per the Special Rules and as well as the guidelines and instructions in the recruitment notification. 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 21/2/2009, immediately some of the non-selectees filed O.A.No.10947 of 2009 which was allowed on 28/2/2011. 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.Dharampal, AIR 1990 SC 2059. 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. 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 India, AIR 1993 SC 477 : 1992 Supp (3) SCC 217. An amendment was also made to General Rules by 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 relies in this regard on T.Narsimhulu v State of Andhra Pradesh, (2010) 6 SCC 545. Eligibility of the applicants 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 1/7/2008 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. Government have issued in G.O.Ms.No.3, Backward Classes Welfare (C2) Department dtd. 4/4/2006, 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.4,00,000.00.

(2.) 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 delay does not arise. We are afraid, we cannot agree with these submissions. In S.S.Rathore a seven Judge Bench interpreted and construed Sec. 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 Sec. 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. 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 India), AIR 1991 SC 1612. 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 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). 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. 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 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. 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 1/8/2008 (Maharaj Krishan Bhatt v State of Jammu & Kashmir), (2008) 9 SCC 24. 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. It is now well settled that who claims equity must enforce his claim within a reasonable time... 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. ... 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. ... 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. In Bharat Sanchar Nigam Limited v Ghanshyam Dass, (2011) 4 SCC 374 a 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 State of Uttar Pradesh, AIR 1985 SC 167 Ishwar Singh v Kuldip Singh, 1995 Supp (1) SCC 179 Arun Tewari v Zila Mansavi Shikshak Sangh, AIR 1998 SC 331 and Mamta Bisht). 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, dtd. 30/12/2011; 8000, 8231, 8232, 8241 and 8260 of 2011, dtd. 20/12/2011; and 8581, 8584, 8585 and 8927 of 2011, dtd. 19/1/2012, 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.