P.C. Ayyala Reddy and another vs APSRTC, Musheerabad, Hyd.

B. Subhashan Reddy, J

Point at issue is whether the women reservation decided to be given by the Andhra Pradesh Road Transport Corporation later to the recruitment process can be made to operate retrospectively. Some facts need to be stated:

Notification inviting applications for recruitment to the post of Traffic Supervisor (Trainee) and Mechanical Supervisor (Trainee) was issued in the newspapers on 7-9-1993. While there were 9119 applicants for Mechanical Supervisor (Trainee), there were 15,128 applicants for Traffic Supervisor (Trainee). The written test was conducted on 25-9-1994. The task of conducting the written test was entrusted to the Institute of Banking for Personnel Selection, Bombay, which is a reputed firm and conducts selection process for recruitment of personnel to the banks. While 6,089 appeared for the written test for selection to Mechanical Supervisor (Trainee), 10263 candidates appeared for Traffic Supervisor (Trainee). Group exercise was introduced before being called for interview and while 359 were called for group exercise for Mechanical Supervisors (Trainee), 321 candidates were called for Traffic Supervisor (Trainee). But the number of candidates appeared for group exercise were 274 for Mechanical Supervisor (Trainee) and 267 for Traffic Supervisor (Trainee). The candidates who attended for interview after group exercise were 221 for Mechanical Supervisor (Trainee) and 243 for Traffic Supervisor (Trainee). It is pertinent to mention that vacancies for Mechanical Supervisor (Trainee) were 69 and Traffic Supervisor (Trainee) were 72. While group exercise was made on 21st and 22nd December, 1995 for Traffic Supervisor Trainees, for Mechanical Supervisor Trainees, the group exercise was conducted on 23rd, 24th and 25th November, 1995. Interviews for Mechanical Supervisor Trainees were conducted on 16th, 17th and 19th August, 1996 and for Traffic Supervisor Trainees, they were conducted on 22nd, 23rd and 24th of August, 1996. The delay in conducting recruitment is attributed to the new procedure of group exercise following the written test and oral interview following the group exercise as against the old pattern of written test followed by interview. Hitherto, written test and interview were being conducted by the APSRTC itself. But, this time, it was entrusted to Institute of Banking for Personnel Selection, Bombay, which is a highly reputed firm, on the recommendations of IMC Unit. There were also frequent changes of officers which also contributed for the delay in making selection pursuant to the above notification.

Proceedings for selection to the above posts were issued in File No.R2/ 331(4)/93-HRD, dated 3-9-1996 sending the marks of the oral interview. After sending the marks of the oral interview to the selection authority mentioned above, a list was prepared and it is apt to extract the same:

"The list of selected candidates for the posts of Traffic Supervisor (Trainee) and Mechanical Supervisor (Trainee) zone-wise, for direct recruitment and against 10% departmental quota, are enclosed to this proceedings. These candidates will be called for medical examination by Dy. CPM (Rectt) and after being found medically fit, they will be allotted to the zones from which they are selected and the Dy. CPMs of the zones shall direct them to Principal, Transport Academy for imparting training duly following all formalities.

The panel is valid for a period of one year from 19-8-1996 for Mechanical Supervisor (Trainee) and from 24-8-1996 for Traffic Supervisor (Trainee)."

Meanwhile, legal opinion was sought for regarding observation of rule of reservation for women at 33 1/3% and the Chief Law Officer has given legal opinion to implement the rule of reservation. On 18-11-1996, the Chief Manager, HRD on behalf of the Managing Director of APSRTC addressed a letter to the Chief Law Officer of APSRTC seeking a clarification which reads as follows:

"A clarification is required on the-following subject:

During the time of notification of the vacancies of Traffic Supervisor (Trainee) and Mechanical Supervisor (Trainee) in the News Papers on 7-9-1993, no GO was received by our officer for reservation of posts for women.

Subsequently, the Government vide G.O.Ms.No,928, dated 6-10-1995 have amended the State and Subordinate Service Rules to the effect that in the matter of direct recruitment posts for which women and men are equally suited, there shall be reservation to women to an extent of 30% of the posts in each category of OC, BC-A, BC-B, BC-C, BC-D, SC, ST, PHC, Ex-servicemen quota. The Government again vide G.O.Ms.No.237, dated 28-5-1996 have amended the G.O.Ms.No.928, dated 6-10-1995 that in the matter of direct recruitment to the posts for which women and men are equally suited, there shall be reservation to women to an extent of 33 1/3% of the posts in each category of OC, BC-A, BC-B, BC-D, SC, ST, PHC and Ex-servicemen quota.

Both the GOs., were implemented and circular instructions have been issued to all Recruiting Authorities to reserve 30% of the posts in favour of women vide Lr.No.R3/331(2)/94-HRD, dated 23-12-1995 and to reserve 33 1/3% of the posts in favour of women vide Circular No.PD-91/96, dated 16-10-1996, in all direct recruitment posts including Conductors and Drivers.

As recruitments of Traffic and Mechanical Supervisor (Trainee) are under finalisation, VC and MD has ordered to examine whether the 33 1/3% reservation for women subsequently ordered by the Government, need to be applied in the two categories of Traffic Supervisor (Trainee) and Mechanical Supervisor (Trainee) since women have been permitted to apply for the posts.

The clarification be given at the earliest to enable us to process the case to VC and MD.

Xerox copies of the GOs. and instructions issued are enclosed."

The Government was addressed in the matter, but there was no response from the Government.

But, the APSRTC went ahead with reservation and a fresh notification dated 5-9-1997 was issued calling for the applications for recruitment to the above posts, whose number swelled to 400 by cancelling the written examination held on25-9-1994 as also the notification earlier issued on 7-9-1993. When the same was questioned in Writ Petition No.13649 of 1997, by order dated 31-12-1997, a learned singe Judge of this Court while referring the matter to the Division Bench, APSRTC was restrained from making any appointments pursuant to the notification dated 5-9-1997 and that is holding the field as on this date. The Managing Director of APSRTC by his letter dated 8-7-1999 addressed to the Secretary to Government, TR and B Department, has stated that on the analogy of G.O.Ms.No.237, dated 28-5-1996, the Board of the Corporation vide Resolution No.75 of 1996, dated 28-8-1996 has resolved to reserve 33 1/3% of the posts in favour of women in all direct recruitment posts and to amend the Regulation 12(2)(i) of APSRTC Recruitment Regulations, 1966 to that extent and that the Board has also resolved to implement the proposals pending approval of the Government. Sanction was given by the Government by its letter No.12461/Tr.III(2)/99-1, only on 9-7-1999 which reads:

"With reference to your letter cited I am to inform that tlie Government after careful examination hereby accord permission to amend the Regulation 12(2)(i) of APSRTC Recruitment Regulations, 1966 as approved by its Board in Resolution No.75, dated 28-8-1996 for the reservation of women to an extent of 33 1/3% in all direct recruitment posts in each category of OC, BC-A, BC-B, BC-C, BC-D, SC, ST, Physically Handicapped and Ex-serviceman quota."

Beyond any doubt, women reservation has got to be implemented in terms of the amended Regulation. But the question which falls for consideration is as to whether the same will relate back to the date of notification in 1993 annulling the said notification and validating the notification issued in 1997.

Ms. Nanda R. Rao, the learned Standing Counsel for APSRTC, strenuously contends that women reservation is permissible under Article 16 of the Indian Constitution and having felt the need of such reservation and it being a beneficial one, the Regulation, which came into force on 9-7-1999 has to relate back to 1993 when the notification was issued. She further submits that there is no right to get appointed to any post, even though there is a right to apply for the post and merely because a notification is issued, it was not incumbent upon APSRTC to finalise the selections pursuant to the said notification and even if the selections have been finalised, there was no obligation on the part of APSRTC to make appointments and that before making appointments, the select list can be cancelled, that in the instant cases for a valid cause of providing women reservation, which is in tune with the Governmental policy, the notification was cancelled and the same cannot be termed as arbitrary or unreasonable and that there is no infraction of fundamental right. She has cited the decisions in Union Territory of Chandigarh Vs. Dilbagh Singh and others, , State of Bihar and others Vs. Md. Kalimuddin and others, , Government of Orissa through Secretary, Commerce and Transport Department, Bhubaneswar Vs. Haraprasad Das and Others, , Rajasthan Public Service Commission Vs. Chanan Ram and Another, , Dr. Ramulu and another, etc. Vs. Dr. S. Suryaprakash Rao and others, and Shankarsan Dash Vs. Union of India, .

(a) In Jai Singh Dalai''s case (supra) it was held that recruitment process can be stopped by the Government at any time before the candidate is appointed, that a candidate has no vested right to compel the Government to complete the process and that at the most the Government may be required to justify its decision as being not arbitrary. In the facts of that case, it was held that there was no illegality committed where the new Government wanted to change the criteria for selection. The said case has no bearing on the cases on hand.

(b) In Union Territory of Chandigarh''s case (supra) the notification, which has been issued, pursuant to which selections were made, was cancelled on the ground of select list has not been prepared fairly and judiciously by the Members of Selection Board and as such, the same is not applicable to the instant cases.

(c) State of Bihar''s case (supra) has got no bearing on the instant cases. In the said case, the life or duration of the panel was one year and it expired on 18-1-1992 in view of the rule and it was held by the Supreme Court that the High Court ought not to have extended the tenure of the panel in exercise of judicial discretion as the constitutional validity of the same was not questioned and that the petition was hit by laches as the same was filed after expiry of the period of one year.

The said judgment has to be understood in the context of the said facts and is not germane for these cases.

(d) The ratio laid down in Government of Orissa v, Haraprasad Das (supra) is also not applicable for the reason that the Government in that case decided not to make appointments for a valid reason.

(e) The same is the case in Rajasthan Public Service Commission''s case (supra).

(f) In Dr. K. Ramulu ''s case (supra) also a policy decision was taken by the Government that until the Recruitment Rules of 1977 were amended, the recruitment process should not proceed and after the Rules of 1996 were framed repealing the Rules of 1977 with effect from 12-6-1996, the recruitment process went on. This case also does not help APSRTC.

(g) In Shankarsan Dash''s case (supra) a 5-Judge Constitution Bench of the Supreme Court dealt with the matter arising out of the complaint of the applicant therein that he ought to have been selected to IPS post because of the vacancy position in that cadre. Ms. Nanda R. Rao, the learned Standing Counsel for APSRTC adverts our attention to the observations made by the Supreme Court therein to the effect that the notification inviting the applications from qualified candidates to apply for recruitment is only an invitation, that even after their selection, the selectees do not acquire any right to the post and that the State is under no legal duty to fill up all or any of the vacancies. But, the said judgment has to be understood on its premised facts. It cannot be understood as an absolute dicta that the State and its instrumentalities coming within the definition of State under Article 12 of Indian Constitution have got unfettered right to call for the applications by notification and again cancel the same at their whims and fancies. In fact, the caution given by the Supreme Court in the above decision itself indicates that the State cannot do any act according to its whims and fancies resulting into arbitrariness and the State action in annulling the notification or not giving effect to the select list either in whole or part shall be subject to valid reason, which can stand the constitutional scrutiny and particularly in the context of Article 14 in general and Article 16 in particular. It is apt to extract as to what the Supreme Courts as stated in that context.

"................. it does not mean that the State has the licence of acting in an arbitrary manner and that the decision not to fill up Ihe vacancies has to be taken bona fide for appropriate reasons, and if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test and no discrimination can be permitted"

In the above case, the State action was held to be valid as the list of selectees of Indian Police Service (IPS) got expired in view of the time frame for commencement of foundational course and that even though some vacancies in the cadre of IPS arose later, it was held that the petitioner therein was not entitled to claim one of such posts, as of right, as the time for such selection had expired. As such, the said facts have got no bearing in the instant cases. Therefore, the contention of the learned Standing Counsel for APSRTC that there is an absolute discretion in APSRTC either to notify the vacancies or not, even after the notification to go ahead with the selection process or not and even after the select list is prepared either to make appointments or not, is untenable. If this contention is accepted, it will only result in negation of the fundamental right of equal opportunity in public employment guaranteed in Article 16(1) of Constitution of India.

The only question, which arises for consideration, is whether the approval of Government given on 9-7-1999 to provide women reservation is retroactive and relates back to the notification of the year 1993. The decisions rendered in Accountant General and Another Vs. S. Doraiswamy and Others, , N.T. Bevin Katti, etc., Vs. Karnataka public Service Commission and others, , P. Mahendran and others Vs. State of Karnataka and others, and Income Tax Officer, Alleppey Vs. M.C. Ponnoose and Others, , and relied upon by Mr. Prabhakar Sripada, the learned Counsel for the petitioners in Writ Petition No.13649 of 1997, throw some light in construing the Regulation 12(2)(i) of APSRTC Recruitment Regulations, 1966, which is concerned in these cases.

(a) In Accountant General''s case (supra) it was held that rule framed under Indian Audit and Accounts (SubordinateAccounts Service and Railway Audit Service) Service Rules, 1974 cannot have retrospective operation and Rule 1(2) framed in that regard giving retrospective operation was struck down as ultra vires.

(b) In N.T. Bevin Kaiti''s case (supra) the Kamataka Public Service Commission issued a notification on 23-5-1975 inviting applications from in service candidates for recruitment to 50 posts of Tahsildars. The said posts were regulated by the Karnataka Administrative Services (Tahsildars) Recruitment (Special) Rules, 1975. There was a reservation for SCs, STs, DCs and Ex-military personnel. In the event of nonavailability of sufficient number of candidates belonging to reserved classes, such vacancies shall be filled up as per rules in force. The notification further gave details to the written and viva voce examinations. Pursuant to the advertisement, the appellants, who were in service candidates, applied to the said posts of Tahsildars and after written examination and viva voce, the Commission finalised the list of successful candidates and published the same in Karnataka Gazette on 18-3-1976. The Commission also notified an additional list of successful candidates for appointment to the posts of Tahsildars in accordance with 1975 Rules, which include the names of the appellants therein. In preparing the select list and making reservations to various categories, the Commission followed the directions and procedure as contained in the Governmental Order dated 6-9-1969. But, the State Government refused to approve the list prepared by the Commission as in its opinion reservation for SCs., STs. and BCs., ought to have been made in accordance with the directions and procedure contained in the GO dated 9-7-1975. The State Government, by its order dated 23-4-1976, directed the Commission to prepare a fresh list of successful candidates by making the reservation in accordance with the procedure contained in GO dated 9-7-1975. Pursuantto the directions of the State Government, the Commission prepared the select list afresh, after making reservations in accordance with the procedure prescribed by the GO dated 9-7-1975. The appellants'' names did not figure in the revised list of successful candidates. The appellants challenged the validity of the GO dated 24-4-1976 as well as the revised list prepared by the Commission as also the validity of the GO dated 9-7-1975 by filing a writ petition before the High Court of Kamataka. But, the said writ petition was dismissed; aggrieved by which, appeal was filed in the Supreme Court. The Supreme Court held that the reservations, which were made and which were operative under the instructions of the Government of 1969, as on the date of notification, have to prevail and not the notification dated 23-4-1976. The selections made pursuant to the notification dated 23-4-1976 were held to be illegal.

(c) In P. Mahendran''s case (supra) the effect of amendment of rules was considered. In the said case, the Karnataka Public Service Commission had issued the notification dated 28-9-1983 inviting applications for recruitment to Motor Vehicles Inspectors posts. The same was regulated by Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1962 framed under Article 309 of the Constitution. Selections were held for 200 posts among the candidates holding the Diploma in Mechanical Engineering and Auto Mobile Engineering, which was the minimum qualification. The select list was prepared and steps were taken to send the selectees for 3 months training before appointing them as Motor Vehicles Inspectors. Meanwhile, the State Government of Karnataka amended the recruitment rules by notification dated 4-5-1987 gazetted on 14-5-1987 omitting the qualification of Diploma in Mechanical Engineering for the posts of Motor Vehicles Inspectors. Consequently, the holders of Diploma in Automobile Engineering became exclusively eligible for appointment to the posts of Motor Vehicles Inspectors and the holders of Diploma in Mechanical Engineering seized to be eligible for their selection and appointment to the said posts. The unsuccessful had challenged before Karnataka Administrative Tribunal, which had quashed the notification on the ground that the amendment to the recruitment rules was not retrospective and that they were prospective and that the selections which were held, cannot be effected by the amended rules. In the said case, the amended rule was held to be prospective and not retrospective.

(d) In Income Tax Officer, Alleppey''s case (supra) it was held that while it is open to a sovereign Legislature to enact laws which have retrospective operation, the Courts will not ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the Legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the Legislature, it may or may not be possible to make the same so as to give retrospective operation. It will depend upon the language employed in the statutory provision, which may, in express terms or by necessary implication, empower the authority concerned to make a rule or regulation with retrospective effect. But, where no such language is to be found, it has been held by the Courts that the person or authority exercising subordinate Legislative functions cannot make a rule, regulation or bye-law, which can operate with retrospective effect. In the said case, a notification was issued empowering the Tahsildars to act as Tax Recovery Officers with effect from the date prior to the date of notification i.e., retrospectively and consequently, the shares belonging to assessec were attached in order to recover the arrears of tax, which accrued prior to the date of notification, but were sought to be recovered subsequent to 1-4-1962 i.e., commencement of the Act of 1961. It was held that the notification was only prospective and that he Tahsildar was not empowered to act as a Tax Recovery Officer.

APSRTC Regulations titled "the Andhra Pradesh State Road Transport Employees (Recruitment) Regulations, 1966" have been framed in exercise of the rule making power u/s 45 of the Road Transport Corporation Act, 1950. The said section does not authorise making of any regulation with retrospective effect. Rightly, the regulation also does not indicate so. In the light of the principles enunciated by the Supreme Court in the cases referred to above in Paragraph 10 and reading the statutory provision contained in Section 45 of the Road Transport Corporation Act, 1950 as also APSRTC Regulations of 1966 leaves no doubt that amended Regulation 12(2)(i), which has been sanctioned by the Government on 9-7-1999 operates only prospectively from the said date i.e., 9-7-1999 and not retrospectively. Question of Regulation 12(2X0 incorporating the women reservation to the post concerned relating back to the year 1993 or even to the year 1997 cannot also arise, as the doctrine of relating back is not at all applicable when the language in the statutory provision is so clear and express that a Regulation can be made u/s 45 of the Road Transport Corporation Act, 1950 only with the previous sanction of the State Government and the whole emphasis is on the words ''with the previous sanction''. In the instant cases, such sanction of the State Government having been obtained on 9-7-1999, Regulation 12(2X0 operates only from the said date i.e., 9-7-1999. But, having regard to the fact that only 3 persons have questioned the notification of the year 1997while thousands have appeared pursuant to the 1997 notification has been completed excepting the announcement of results, which has been stayed by this Court, we limit the relief only to these three writ petitioners.

In view of what is stated supra, we allow the writ petitions only to the extent of the petitioners herein directing their appointment to the posts applied by them, in case their names appeared in the select list pursuant to the notification dated 7-9-1993. Rest of the vacancies can be made available to the candidates, who had applied for appointment pursuant to the later notification dated 5-9-1997. No order as to costs.