Holding

The High Court erred in adjudicating the constitutional validity of the reservation policy as no challenge to the policy was raised, and therefore the policy stands.

Summary

The Tamil Nadu Service Recruitment Board reserved 10% of police constable posts for the children/wards of serving, retired, deceased or medically invalidated police personnel and ministerial staff. M. Senthil Kumar applied for a post but was rejected on the grounds of unsatisfactory performance, and the Central Administrative Tribunal upheld the rejection without addressing the policy's constitutionality. Kumar filed a writ petition in the Madras High Court, which dismissed his petition for lack of merit and additionally held that the reservation based on descent violated Article 16(2) of the Constitution, relying on Yogendra Pal Singh. The State appealed, arguing that no party had challenged the policy's validity before the Tribunal or the High Court, and therefore the High Court could not decide the constitutional issue. The Supreme Court agreed, holding that the High Court erred in adjudicating a matter not raised in the pleadings and set aside the portion of the order that declared the policy unconstitutional, while affirming the finding of lack of merit. The appeal was allowed without any order as to costs.

Issues considered

Whether a court can decide on the constitutional validity of a reservation policy when no challenge to that policy was raised in the pleadings.
Whether reservation for children/wards of police personnel violates Article 16(2) of the Constitution.
Whether the High Court erred in invalidating the policy without a specific challenge.

Legislation cited

Constitution of Indias. Article 16(2)

Subjects

reservationpolice recruitmentArticle 16constitutional validitypleadingsjurisdictionCentral Administrative Tribunalwrit petitionspecial quotadescent

Judgment

A SECRETARY TO THE GOVT. AND ANR.
v.
M. SENTHIL KUMAR

FEBRUARY 28, 2005

B [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]

Practice and Procedure :

Pleadings-Issue not raised in pleadings cannot he adjudicated by
C Court-On facts, validity ofpolicy decision not having been challenged before
Tribunal, High Court erred in invalidating the same.

Applications were invited for the post of Police Constable, in which
10% of posts were for reserved category. Applicant-Respondent applied
D but was not selected. He filed Original application before the Central
Administrative Tribunal, and the Tribunal.held that respondent had failed
to get selerted because his performance was not satisfactory and that he
was not entitled for any preferential treatment. There was no finding as
to validity of policy of reservation. Respondent filed a writ petition before
High Court and Single Judge while holding that the respondent had not
E come out successful 'in tests, held that reservation provided for was
unconstitutional.

In appeal to this ·court, Appellant-State contended that there was
no challenge to the policy by anybody; that in fact the respondent was
relying on the policy and that Tribunal had also not expressed any opinion
F on the constitutional validity of the provision.

Allowing the appeal, the Court
'
.jil
HELD: 1. .There was no challenge to nor express view expressed
regarding the validity of the policy decision by the Tribunal as wrongly
G concluded by the High court. The application before the Tribunal was
disposed of primarily on the ground that the respondent was not suitable
for selection. High Court could not have made out a case for adjudication
which was not even part of the pleadings. (439-C, DI

H 436
SECRETARY TO THE GOVT. v.M.S. KUMAR [PASA YAT . .I.] 437

- 2. Since there was no challenge to the policy decision the respondent A
did not get any opportunity to place his stand before the High Court.
Therefore, it was not open to· the High Court to dismiss the application
on the additional ground that the policy decision was unconstitutional,
overlooking the fact that the respondent-applicant was seeking relief under
the policy decision. 1440-D) ·
B
Yogendra Pal Singh v. Union of India, AiR (1987) SC 1015; V.K.
Majotra v. Union of India, (2003) 8 SCC 40; State of Maharashtra v. Jalgaon
Municipal Council, 120031 9 SCC 731 and The President, Poornathravisha
Seva Sangham, Thripunithura v. K. Thilakan Kavenal and Ors., (2005) 2
SCALE 1, referred to. c
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1453 of2005.
_J

From the Judgment and Order dated 6.2.2004 of the Madras High
Court in W.P. No. 26637 of 2003.

K.K. Venugopal, Ms. Seema Bengani and Subramonium Prasad for the D
Appellants.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Leave. granted.
E
The Government of Tamil Nadu questions legality of the judgment
rendered by the Madras High Court holding that the policy of the State
Government in providing I0% special quota to the children/wards of serving/
retired/deceased personnel of.police and like forces is invalid.

A brfof reference to the factual issue would suffice. F

The Tamil Nadu Service Recruitment Board (in short 'Recruitment
Board') published a Notification in several local dailies on 5.3.2000 calling
for applications filling up 1155 posts of Police Constables, Grade II. In the
Notification the Board had stated that l 0% of the posts were reserved for G
legal heirs of serving personnel,. for ministerial staff and also for legal heirs
of those persons who had been invalidated on medical grounds. The respondent
(hereinafter referred to as the 'appli<:ant') filed an Original Application before
the Central Administrative Tribunal (in short the 'Tribunal'). The respondent-
applicant was not found successful as he had not faired well in the written
test as well as the physical test. He was, therefore, not held to be qualified H
438 SUPREME COURT REPORTS [2005] 2 S.C.R.

A for selection.
The Tribunal held that since the applicant had not qualified he·was not
fit for se!ection. He had failed to get selected·because his performance was
not satisfactory. It was further,held that he .was not entitled for any preferential
treatment. It is to be noted that there was no challenge by the applicant before
B the Tribunal to validity of the policy because he himself wanted to avail
benefits under the policy. The respondent-applicant filed a Writ Petition before
the Madras High Court. A learned Single Judge of the Madras High Court
dismissed the writ petition on the ground that writ ·petitioner had not come
out successful in the tests. But at the same time held that the preference
C which was being sought for on the ground of descent was prohibited by
Article 16(2) of the Constitution of India, 1950 (in short the 'Constitution').
It was held by relying on a decision of this Court in Yogendra Pal Singh v.
Union of India, AIR (l 987) SC IO 15 that there cannot be any reservation on
the basis of descent. It was held that the reasoning of the· Tribunal that
reservation provided for wards of police personnel is unconstitutional was in
D order. It was further noted that though the reservation provided by the State
had been applied in the case of many persons wrongly, it would not be
proper to invalidate the appointments already made. Though it was urged by
learned counsel for the State that the constitutional validity of concerned
policy was not in issue, the High Court felt that in view of the declaration ·
E of law by this Court the matter could be taken note Of by it

Mr. K.K. Venugopal, learned senior counsel appearing for the State
submitted that there was no challenge to the policy by anybody. In fact the
respondent-applicarit was relying on the policy. The "Tribunal came to the
conclusion that the respondent-applicant before it was not entitled for any
F preferential treatl_llent. It did not express .any opinion on the constitutional
. validity of the provision. The High Court erroneously declared the policy to
be constitutionally invalid.

Though the service of notice had been duly effected, there is no
appearance on behalf Of the respondent.
G
We find that there was no challenge to the·constitutional validity of the
policy providing for 10% special quota· to: the. children/wards of serving/
retired/deceased personnel of-police and like forces.; The relevant portion of
the Government Order dated 10:9.2001 containing the·policy is as follows :
. . . .
H "The Government also direct that 10% quota be pr~vided for
SECRETARY TO THE GOVT. v.M.S. KUMAR [PASA YAT . .I.] 439

dependents of the serving police personnel and the wards/dependents A
of retired, deceased and medically invalidated police personnel so as
to boost up the morale and strengthen the loyalty of the force. In
case, it is not possible to fill up the sports quota of I0%, the
Government permit the filling up of the gap by the dependents of the
serving personnel so that the total percentage does not exceed 20%.'' B
Subsequently, on 26.3.2002 the aforesaid Government Order was
amended and the benefit was extended to the children/wards/dependents of
the ministerial staff of the Police Departments. The application before the
Tribunal was disposed of primarily on the ground that the applicant was not
suitable for selection. There was only one additional observation which reads C
as follows :

"He is not entitled for any preferential treatment also."

Therefore, there was no express view expressed regarding the validity
of the policy decision by the Tribunal as wr01_1gly concluded by the High D
Court. Obviously, the High Court. could not have .made out a case for
adjudication which was not even part of the pleadings . .In V.K. Majotra v.
Union of India, .[200~] 8 SCC 40 this Court observed as under :

" .. :.Counsel for the· parties -are right ·in submitting that 'the point on
·which the writ petition··has·been disposed of was·not raised·by the E
parties ·in their· pleadings. The parties were not at issue on the point
decided by the High Court... .. "

In State of Maharashtra v. Jalgaon Municipal Council, [2003] 9 SCC
73 I this Court at page 757 observed as under :

".Jn the absence of any challenge having been laid, the constitutional F
validity of the amendment cannot be gone into ..... "

Recently, in The President, Poornathrayisha Seva Sangham,
Thripunithura v. K. Thilakan Kavenal and Ors., (2005) 2 SCALE I in para
9 it was observed as under :

-
G
"Above being the position, we feel that nothing further remains to be
done in this appeal except noticing that certain observations made, as
regards the functioning of the appellant-society and its credibility
were unnecessary. For the purpose of adjudication of the dispute
before the High Court which only related to the permission granted H
440 SUPREME COURT REPORTS [2005) 2 S.C.R.

A to use Oottupura, other observations and views expressed by the
Division Bench are, therefore, treated as inoperative. Since disputed
facts were involved, the High Court should not have gone into them
even in respect of the primary grievances of the writ petitioner".

Since there was no challenge to the policy decision contained in the
B ·two Government Orders the applicant did not get any opportunity to place his
stand before the High Court.

Learned counsel for the appellant has submitted that facts involved in
Yogendra Pal's case (supra) are clearly distinguishable from the facts of the
present case. The policy decision has been taken taking note of the several
C special features which would have made the case of Yogendra Pal clearly
distinguishable. We need not go into the question about the applicability of
Yogendra Pal's case (supra) on the sole ground that there was no challenge
to the policy decision in the petition filed before the Tribunal or before the
High Court. Therefore, it was not open to the High Court to· dismiss the
D application on/ the additional ground that the policy decision was
unconstitutional, overlooking the fact that the respondent-applicant was seeking
relief under the policy decision. We have, therefore, not expressed any opinion
on the validity or otherwise '6fthe policy decision providi~g_for 10% special
quota to a particular group of candidates. We set aside that part of the order
of the High Court which invalidates the policy decision. _Other part of the
E order which deals with lack of merits stands affirmed as there is no challenge
to it by the respondent.

D.G.
The appeal is allowed with no order as to costs.

Appeal allowed. -