Holding

The Tribunal’s order directing recruitment of the remaining nine candidates from the existing list is justified, and the High Court correctly refused jurisdiction under Article 226; thus the appeal is dismissed.

Summary

The Andhra Pradesh Public Service Commission (APPSC) advertised 19 Deputy Superintendent of Police posts, but the State Government later directed it to recommend only ten candidates. The APPSC complied, and the remaining three applicants challenged the direction. The Andhra Pradesh Administrative Tribunal held that the State’s direction was a mistake and ordered the APPSC to appoint the remaining nine candidates from the existing selection list in accordance with reservation rules, without a fresh selection process. The High Court upheld the Tribunal’s order and refused to entertain a writ under Article 226 of the Constitution. On appeal, the Supreme Court affirmed that the Tribunal’s order was justified, the High Court correctly declined jurisdiction, and the Commission could not claim grievance merely because it would have to conduct a fresh selection. Consequently, the appeal was dismissed with costs.

Issues considered

Whether the State Government’s direction to fill only ten of the nineteen advertised posts was valid.
Whether the Administrative Tribunal could direct recruitment of the remaining nine candidates from the existing selection list without a fresh selection process.
Whether the High Court was justified in refusing jurisdiction under Article 226 of the Constitution.
Whether the Public Service Commission could challenge the Tribunal’s order on the ground of inconvenience.

Legislation cited

Constitution of Indias. Article 226

Subjects

service lawrecruitmentpublic service commissionadministrative tribunalArticle 226reservationselection processmistakewrit petition

Judgment

ANDHRA PRADESH PUBLIC SERVICE COMMISSION A
v.
P. CHANDRA MOULEESWARE REDDY AND ORS.

SEPTEMBER 14, 2006

[S.B. SINHA AND DALVEER BHANDARI, JJ.] B

Service law:

Recruitment-Advertisement for nineteen posts of Deputy Superintendent
of Police-Selection process by Public Service Commission-Recommendation C
of only 10 posts out of the 19 in compliance with direction of the State
Government-Act of the Commission challenged-Tribunal directing
recruitment of the remaining 9 posts, finding that the direction by the State
was a mistake-High Court refused to exercise its jurisdiction under Article
226-0n appeal, held: Order of Tribunal was justified -High Court rightly D
refused to exercise its jurisdiction under Article 226-If the State had no
objection to fill the post realizing its mistake, it was not proper for the
Commission to challenge the order of Tribunal only because it will have to
undertake the selection process again-Pu!Jlic Service Commission Rules-
Ru/e 6-Constitution of India, 1950-Article 226.
E
Appellant-Commission advertised nineteen posts of Deputy
Superintendent of Police. Respondent Nos. 1-3 applied for the same. After
the selection process was over, the State Government asked the
Commission to send recommendation for only ten vacancies in the said
category for the purpose of direct recruitment, which was complied with F
by the Commission. The same was challenged by the respondents. The
State Administrative Tribunal found that, it was a mistake on the part of
the State to issue the direction, and directed the Commission to make
recruitment from the selection list to the rest of nine posts out of the
nineteen posts. In Writ Petition High Court upheld the judgment of the
Tribunal. Hence the present appeal. G
Dismissing the appeal, the Court

HELD: I. The State Government did not question the order of the
Tribunal. The Commission was required to carry out fresh exercise in
181 H
182 SUPREME COURT REPORTS (2006] SUPP. 6 S.C.R.

A compliance of the directions of the Tribunal. For the said purpose, no fresh
selection process was to be undertaken. If the State did not have any
objection to fill up the said posts realizing the mistake committed by it,
there is no reason for the Commission to feel aggrieved by the order of
the Tribunal. Commission should follow the instructions of the State,
provided the same is in accordance with rules. Although a mistake had
B been committed by the State, the same cannot be directed to be perpetrated
only because the Commission will have to undertake the selection process
again and particularly, in view of the fact that the State Government did
not question the order passed by the Tribunal. (186-F; 188-3, El

C Virender S. Hooda and Ors. v. State of Haryana and Anr., (1999) 3 SCC
693, relied on.

2. The candidates should not suffer owing to a mistake on the part
of the State. The Tribunal directed the Commission to notify the remaining
nine candidates in the merit order following the 'Rule of Reservation'. It
D was categorically stated that those who would be appointed in terms
thereof would be able to claim any right only with prospective effect, i.e.,
from the date of their actual joining of service. It, therefore, cannot be
said that the order of the Tribunal was in any manner unjustified,
arbitrary or unreasonable. To take a technical view so as to deprive the
candidate of his right would be unjust. The High Court rightly refused to
E exercise its jurisdiction under Article 226 of the Constitution of India.
(187-F-GI

Ms. Neelima Shangla v. State of Haryana and Ors., (1986] 4 SCC 268;
S.L. Kaul and Ors. v. Secretary to Government of India, Ministry of
Information and Broadcasting, New Delhi and Ors., (1989( Supp.I SCC 147,
F relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4I29 of2006.

From the Judgment and Order dated 28.7.2005 of the High Court of
Andhra Pradesh at Hyderabad in W.P. No. 6729/2005.
G Guntur Prabhakar for the Appellant.

P.P. Roa, L.N. Rao, R. Santhan Krishnan. K. Radha Rani, Praveen K.
Pandey, P. Vijay Kumar, C.S.N. Mohan Rao aw1 D. Mahesh Babu for the
Respondents.

H The Judgment of the Court was delivered by
ANDHRA PRADESH PUBLIC SERVICE COMMISSION>'. P. CHANDRA MOULEESWARE REDDY (S.B SINHA. J.] J8)

S.B. SINHA, J. Leave granted. A
Andhra Pradesh Public Service Commission (for short, 'the
Commission') is in appeal before us aggrieved by and dissatisfied with the
judgment and order of a Division Bench of the High Court of Judicature of
Andhra Pradesh dismissing a writ petition filed by it from an order of the
Andhra Pradesh State Administrative Tribunal dated 15.10.2004 directing it B
to make recruitment from the selection list to the nine posts of Deputy
.Superintendent of Police as only ten out of nineteen posts advertised therefor
had been filled up.-

The Commission adv~rtised nineteen posts for recruitment to the post C
of Deputy Superintendent of Police. Pursuant thereto and in furtherance thereof,
. applications were filed, inter alia, by the Respondent Nos. I to 3 herein. The
State, however, asked the Commission to fill up only ten posts. An exercise
was carried out accordingly by the Commission purported to be in terms of
Rule 6 of the Public Service Commission Rules.
D
Aggrieved by and dissatisfied therewith, the Respondent No~. I to 3
filed an Original Application before the Andhra Pradesh Administrative
Tribunal (Tribunal). The Tribunal noticed that the Respondent Nos. 1 to 3
pursuant to the advertisement of the Commissbn appeared at the written
examination. They had also appeared at the interview. At that stage only, the
State of Andhra Pradesh directed the Commission to fill up only ten posts, E
which was complied with.

It is not disputed that nineteen posts were vacant. The vacancies were
notified in terms of Rule 3 of the Andhra Pradesh Police Service Rules. It is
also not denied or disputed that the said posts were to be filled up both by
way of direct recruitment as also by promotion in the ratio of I :2. In not F
filling up the said posts, according to the Respondents, the provisions of the
said Rules have been violated.

In its counter affidavit, the State contended :

"According to the programme of selections to be made by the G
Andhra Pradesh Public Service Commission among other things being
equal that Government in the case of State Services should send to
Andhra Pradesh Public Service Commission estimates of the number
of candidates to be selected for each service. The estimate of the
number of candidates required should cover a period of 12 months H
184 SUPREME COURT REPORTS (2006] SUPP. 6 S.C.R.

A following the dates on which the lists of selected candidates are due
to be communicated to the appointing authorities according to the
programme. As the appointing authorities are not acihering to the
time schedule and not notifying the vacancies to the A.P. Public
Service Commission in time, which resu Its in delay in making
recruitment in the State Government Offa.es the following instructions
B were issued :

"The matter has been reviewed and it is hereby ordered that 1/3
of the vacancies in respect of retirements in the particular year of
recruitment in respect of the posts which are within the purview of
the A.P. Public Service Commission for making direct recruitment
c shall be notified in advance to the Andhra Pradesh Public Service
Commission in order to hasten up the recruitment and to enable the
Commission to programme its selection suitably."

In Rc.No.564/G3/97, dt. 8.7.97, the Director General and Inspector
General of Police, Andhra Pradesh, Hyderabad has addressed the
D
General Administration (Ser) Department with a request to notify 19
backlog vacancies of Deputy Superintendent of Police Category-2 for
direct recruitment but not the vacancies that would arise in future and
he has also extended the same letter to the Andhra Pradesh Public
Service Commission which in tum notified the vacancies for the ..
E purpose of inviting applications from the open market.

However on the presumption that they were to be filled up for
future ;·ecruitment, Government in Home Department have given
directions to the Andhra Pradesh Public Service Commission that
only I 0 vacancies for the post of Deputy Superintendent of Police
F instead of 19 vacancies be notified as per Govt. Memo No.1946/Ser-
A/90- l, dt.18.12.90, which is a mistake of fact i.e., vide impugned
Government Letter No.2170l/Pol.E/A1/99-1 dt.2.6.99."

The Tribunal, therefore, opined that mistake on the part of the State
being admitted, the applicants were entitled to the reliefs prayed for. It was
G furthermore observed that the State before issuing the direction to the
Commission should have consulted the Director General of Police and, thus,
its decision was arbitrary. In regard to the stand of the Appellant, the Tribunal
observed :

"Though the APPSC ".'as acting at the specific instance of the
H
ANDHRA PRADESH PUBLIC SER VICE COMMISSION•·. P. CHANDRA MOULEESWARE REDDY [SB. SINHA. J.JJ 85

first respondent i.e. Government, and it is not its own fault that not A
filling up the 19 vacancies occurred, still the action itself has to be
declared as arbitrary and illegal on account of the basis of the action.
{

In the facts and circumstances of the case, it is declared that the
APPSC ought to have selected 19 candidates strictly following the
rule of reservation instead of lO candidates. It is also further declared B
that the first and second respondents ought to have selected 19
candidates as against I0 candidates actually by following the rule of
reservation."

The writ petition filed by Appellant was dismissed by a Division Bench
of the High Court stating : C
"The only submission made by the learned counsel for the writ
petitioner is that at this stage, after a lapse of 7 years, if the direction
of the Tribunal is to be implemented it would involve a great deal of
exercise on the part of the Service Commission as the examination
was conducted not only for the posts of Deputy Superintendent of D
Police but to 18 other categories of posts belonging to the same
group. This argument, in our considered opinion, is only to be stated
as rejected, as there is a constitutional obligation of the Service
Commission to conduct the examination to enable the State to fill up
the various posts to be filled up by the State. Such an obligation E
necessarily involves a onerous exercise, but that cannot be an excuse
to decline the discharge of an obligation mandated by the Constitution
of India."

Submission of Mr. G. Prabhakar, learned counsel appearing on behalf
of the Commission before us is that as the selection process having been F
completed on 20.8.2000 the Tribunal should not have directed filling up of
nine vacancies in September, 2003 as in tenns of Rule 6 of the Public Service
Commission Rules, the remaining vacancies were to be filled up only in the
next year. It was submitted that if the direction is to be carried out, the same
will have a cascading effect.
G
Mr. P.P. Rao, learned Senior Counsel appearing on behalf of the
Respon;'ents, on the other hand, would submit that the candidate should not
suffer owing to a mistake on the part of the State.

Indisputably, by reason of Advertisement No.5 of 1998, nineteen posts H
186 SUPREME COURT REPORTS [2006) SUPP. 6 S.C.R.

A of Deputy Superintendent of Police Category-2 in Police Service in the pay
scale of Rs.3880-8140 were notified. Selection process ensued in furtherance
thereof. The State of Andhra Pradesh by a letter dated 2.6.1999, however,
asked the Commission to send recommendation for only ten vacancies in the
said category for the purpose of direct recruitment, stating :

B "According to the orders issued in Govt. Memo No.1946/Ser.A/
90-1, Dt.18.12.90, 1/3 of the vacancies in respect of retirements in a
particular year of recruitment in respect of the posts which are within
the purview of A.P.P.S.C. for making direct recruitment, shall be
notified A.P.P.S.C.; and not on the basis of the total No. of substantive
vacancies in the Dept. from its inception. Accordingly the D.G. &
c l.G.P. has been requested to send revised proposals and his proposals
were awaited. As the matter stood thus, it is not clear as to how the
estimate of 19 posts of D.Ss.P. were cleared by Fin. & Pig. Dept. and
advertised by A.P.P.S.C. later, as stated in the letter third cited, without
the confirmation by this Dept.
D
Subsequently, A.P.P.S.C. has also called for estimate of vacancies
upto 31.8.1998 in the letter second cited. Govt. have furnished the
estimate i.e. IO vacancies, keeping in view the instructions issued in
Govt. Memo 1946/Ser.A/90-I, Dt.18.12.90 are also taking into
consideration the vacancies arose upto 31.8.1998."
E
The finding of the Tribunal and consequently that of the High Court,
in that, it was a mistake on the part of the State to issue the aforementioned
direction. The same is not in dispute.

The State of Andhra Pradesh, we may notice, did not question the order
F of the Tribunal. The Commission was required to carry out fresh exercise in
compliance of the directions of the Tribunal. For the said purpose, no fresh
selection process was to be undertaken. If the State did not have any objection
to fill up the said posts realizing the mistake committed by it; we fail to see
any reason as to why the Commission should have felt aggrieved by the order
G of the Tribunal.

In Ms. Neelima Shangla v. State of Haryana & Ors., [1986) 4 SCC
268, this Court opined :

" ........ That was wrong. The names of all the qualified candidates had
to be sent to the government. The reason given by the Public Service
H Commission for not communicating the ent~re list of qualified
ANDHRA PRADESH PUBLIC SERVICE COMMISSION"· P. CHANDRA MOULEESWARE REDDY [S.B SINHA.J J ) 87

candidates to the government is that they were origirially informed A
that there were only 28 vacancies. That is not a sound reason at all.
Under the "Rules relating to the appointment of Subordinate Judges
in Haryana", the Public Service Commission is not concerned with
the number of vacancies at all. Nor is it expected to withhold the full
list of successful candidates on the ground that only a limited number B
of vacancies are available. The Government of Haryana has taken the
stand that they \Vere unable to select and appoint more candidates as
the names of only a few candidates were sent to them by the Public
Service Commission. It now transpires that even before the Public
Service Commission sent its truncated list to the government, the
High Court had already informed the government that there were C
more vacancies which required to be filled. The government not
knowing that the names of several candidates who were qualified had
been withheld from the government by the Service Commission, wrote
to the Service Commission to hold a fresh competitive examination.
If the government had been aware that there were qualified candidates
available, they would have surely applied Rule 8 of Part D and made D
the necessary selection to be communicated to the High Court. The
net result is that qualified candidates, though available, were not
selected and were not appointed. Miss Neelima Shangla is one of
them. In the view that we have taken of the rules, Miss Neelima
Shangla is entitled to be selected for appointment as Subordinate E
Judge in the Haryana Civil Service (Judicial Branch)."

The candidates, therefore, in our opinion, should not suffer owing to a
mistake on the part of the State. The Tribunal, we have noticed hereinbefore,
directed the Commission to notify the remaining nine candidates in the merit
order following the 'Rule of Reservation'. It was categorically stated that F
those who would be appointed in terms thereof would be able to claim any
right only with prospective effect, i.e., from the date of their actual joining
of service. It, therefore, cannot be said that the order of the Tribunal was in
any manner unjustified, arbitrary or unreasonable. The High Court, thus, in
our opinion, rightly refused to exercise its jurisdiction under Article 226 of G
the Constitution of India.

We may notice that in S.l. Kaul & Ors. v. Secretary to Government of
India, Ministry of Information and Broadcasting, New Delhi & Ors., (1989]
Supp. I SCC 147, this Court held that to take a technical view so as to deprive
H
188 SUPREME COURT REPORTS [2006) SUPP. 6 S.C.R.

A the candidate of his right of seniority, would be unjust.
The question was considered at some length by a Division Bench of
this Court in l"irender S. Hooda & Ors. v. State of Haryana & Anr., [1999]

B
3 SCC 693. wherein it was held that the Commission should follow the
instructions of the state provided the same is in accordance with rules.

The policy of the State was to fill up all the nineteen posts. The
-
Respondents were. thus, entitled to have their case considered by the
Commission in accordance with merits only. Mistakenly, the State directed
to fill up only ten posts which was realised by it when the Original Application
C was filed before the Tribunal. It accepted its mistake in no uncertain terms.
Rule 6 of the Public Service Commission Rules reads as follows :

"The list of candidates approved/selected shall be equal to the
number of vacancies only including those for reserve communications/
categories notified by the unit officers/Government. The layout
D vacancies if any due to relinquishment/ and non-falling selected
candidates shall be notified in the next recruitment."

Rule 6 of the Public Service Commission Rules, whereupon Mr.
Prabhakar placed reliance, is not of much significance. It operates in a different
E field. It will have no application in a case of this nature. The law cannot be
permitted to act unfairly. It cannot be arbitrary. The country is governed by
a Rule of Law and not by men. Thus, although a mistake had been committed
by the State, the same cannot be directed to be perpetrated only because the
Commission will have to undertake the selection process again and particularly,
in view of the fact that the State of Andhra Pradesh did not question the order
F passed by the tribunal.

For the reasons aforementioned, we find no merit in this appeal, which
is, accordingly, dismissed with costs quantified at Rs.25,000/- payable by
Appellant in favour of Respondent Nos. l to 3.

G K.K.T. Appeal dismissed.