Holding

The Commission may employ a uniform shortlisting ratio irrespective of community, provided it complies with the constitutional reservation scheme under Articles 14, 16 and 335, and it has locus standi to challenge the High Court's order.

Summary

The Andhra Pradesh Public Service Commission (APPSC) appealed against a High Court order that declared the Government Orders (GOMs) of 31‑12‑1997 and the 27‑12‑2007 notification, which used a 1:50 shortlisting ratio irrespective of community, ultra vires Articles 14 and 16 of the Constitution. The Supreme Court examined whether the shortlisting procedure, the reservation rules (Rules 22 and 22‑A) and the preliminary examination complied with Articles 14, 16 and 335, and whether the Commission had locus standi to file the appeal. The Court held that the Commission may adopt a uniform shortlisting ratio provided it respects the constitutional mandate of reservation, that the procedure was not arbitrary or discriminatory, and that the Commission indeed had locus standi. Consequently, the High Court’s judgment was set aside and the appeal was allowed without any order as to costs.

Issues considered

The Andhra Pradesh Public Service Commission's locus standi to file a Special Leave Petition challenging the High Court's order.
Whether the GOMs dated 31‑12‑1997 and the 27‑12‑2007 notification, which short‑list candidates on a 1:50 ratio irrespective of community, violate Articles 14 and 16 of the Constitution.
Whether the shortlisting procedure and the application of Rules 22 and 22‑A of the Andhra Pradesh State and Subordinate Service Rules, 1996 are consistent with Article 335.
Whether the High Court's direction to prepare a category‑wise statement of shortlisted candidates is constitutionally valid.
Whether the Commission's procedure is arbitrary, discriminatory or contrary to the principles of fair play.

Legislation cited

Andhra Pradesh Public Service Commission Rules of Procedures. Rule 4
Andhra Pradesh State and Subordinate Service Rules, 1996s. Rule 22, s. Rule 22-A
Code of Civil Procedures. Order 41 Rule 4
Constitution of Indias. Article 14, s. Article 16, s. Article 162, s. Article 309, s. Article 315, s. Article 335
Representation of People Act, 1951s. Section 116C

Subjects

reservationpublic service commissionmeritpreliminary examinationshortlisting ratioArticles 14, 16, 335locus standiAndhra Pradeshcivil service recruitment

Judgment

[2009] 5 S.C.R. 688

A AP. PUBLIC SERVICE COMMISSION
v.
BALOJI BADHAVATH & ORS.
(Civil Appeal No. 2244 of 2009)
APRIL 8, 200H
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

CONSTITUTION OF IND/A, 1950:

c Articles 14, 16, 335 - Reservation in recruitment -
Andhra Pradesh Subordinate Service Rules, 1996, 22 and
22A - Validity and applicability of

ANDHRA PRADESH SUBORDINATE SERVICE
RULES, 1996:
D
Rules 4, 22 and 22A - Reservation in appointments -
Protection of - Constitutional validi(y of

LOCUS STAND/:
E Public Service Commission - Selection Procedure -
Locus standi of the Commission - Held it could maintain the
writ petition.

The Government of Andhra Pradesh used to issue
F orders laying down norms to be adopted for filling up of
vacancies in Group-I services in the State. The selection
process contained preliminary examination and main
examination followed by interview. For the preliminary
and main examination, two criteria used to be adopted,
G one for the general category and the other for the
reserved category. The said procedure came to be
challenged before the High Court. On the basis of the ~

judgment of the High Court, the State issued fresh G.O.
providing that the candidates who had applied for Group-
H 688
A.P. PUBLIC SERVICE COMMISSION v. BALOJI 689
BADHAVATH & ORS.

I services would be shortlisted based on preliminary A
,.. .. examination (Screening Test) in the ratio of 1:50 to the
total no. of vacancies available at the material time
irrespective of community. In accordance with the said
G.O. a Notification was issued in 2003 calling applications
..... for Group-I services. The Notification was challenged in B
a writ petition but without success.

A Notification was issued in 2007 notifying 196
vacancies. 1,68,000 candidates applied and 9800
candidates were shortlisted to take the main examination.
Some of the unsuccessful candidates approached the
c
State Tribunal. The application was dismissed by the
Tribunal. Aggrieved, the unsuccessful candidates filed a
writ petition in the High Court. The High Court directed
the Commission to prepare a statement showing the ratio
as also category-wise data of the candidates permitted D
to appear for the Main examination as per the
Commission; that despite noticing the ratio laid down, in
regard to certain category of candidates, as for example,
OC, BC(C), BC(E), women and physically handicapped
candidates, in its earlier decisions in S. Jafeer Saheb as E
also in G. Raju, it was held that in the said case as the
ratio of the candidates in respect of those categories fell
much short of 1:15 ratio, the said GOMs dated 31.12.1997
as also the notification dated 27.12.2007 were held to be
1 ultra vires Articles 14 and 16 of the Constitution of India. F
Hence the appeal.

Allowing the appeal, the Court

HELD: 1. The Constitution of India lays down
provisions both for protective discrimination as also G
affirmative action. Reservation of posts for the
r disadvantaged class of people as also seats in
educational institutions are provided for by reason of
Articles 15 and 16 of the Constitution of India. Reservation
H
690 SUPREME COURT REPORTS [2009) 5 S.C.R.

A made for the members of the Scheduled Castes,
Scheduled Tribes and other Backward Classes, however,
is subject to Article 335 of the Constitution of India.
Concededly, no citizen of India can claim reservation as
a matter of right. The provisions contained in Articles 15
B and 16 of the Constitution of India are merely enabling
provisions. No writ of or in the nature of mandamus, thus,
could be issued. [Para 17) [705-G, H; 706-A]

C.A. Rajendran v. Union of India & Others, (1968) 1 SCR
721; Indra Sawhney and Others v. Union of India and Others
C 1992 Supp (3) SCC 217; Ajit Singh and Others (//) v. State
of Punjab and Others (1999) 7 sec 209 and State of Punjab
and Others v. Manjit Singh and Others (2003) 11 SCC 559,
relied on.

D 2. Appellant - Commission which has been 1
constituted in terms of Article 315 of the Constitution of
India is bound to conduct examination for appointment
to the services of the State in terms of the Rules framed
by the State. It is, however, free to evolve procedure for
E conduct of examination. While conducting the
examination in a fair and transparent manner as also
following known principles of fair play, it cannot
completely shut its eyes to the constitutional
requirements of Article 335 of the Constitution of India.
F [Para 21) [707-H; 708-A] ~. •
State of Kera/a and Another v. N.M. Thomas and Others
(1976) 2 sec 310, relied on.
3. How the Commission would judge the merit of the
G candidates is its function. Unless the procedure adopted
by it is held to be arbitrary or against the known
principles of fair play, the superior courts would not
ordinarily interfere therewith. The State framed Rules in
the light of the decision of the High Court in S. Jafeer
H
A.P. PUBLIC SERVICE COMMISSION v. BALOJI 691
BADHAVATH & ORS.
-f
Saheb. Per se, it did not commit any illegality. The A
_, correctness of the said decision, is not in question having
attained finality. The matter, however, would be different
if the said rules per se are found to be violative of Article
16 of the Constitution of India. Nobody has any
,
_.
_
fundamental right to be appointed in terms of Article 16 B
of the Constitution of India. It merely provides for a right
to be considered therefor. A procedure evolved for laying
down the mode and manner for consideration of such a
right can be interfered with only when it is arbitrary,
discriminatory or wholly unfair. [Para 22] [709-E-G]
c
S. Jafeer Saheb v. State of Andhra Pradesh 1985 (2)
APLJ 380 and G. Raju v. Government of A.P. rep. by its
Secretary, (Writ Petition No. 24247 of 2004 decided on
31.12.2004), referred to.
'" 4.1. Indisputably, the preliminary examination is not
D

a part of the main examination. The merit of the candidate
is not judged thereby. Only an eligibility criterion is fixed.
The papers for holding the examination comprise of
General Studies and Mental Ability. Such a test must be E
held to be necessary for the purpose of judging the basic
eligibility of the candidates to hold the tests. How and in
what manner the State as also the Commission would
comply with the constitutional requirements of Article 335
' j of the Constitution of India should ordinarily not be
F
allowed to be questioned. [Para 25] [712-E, F]

4.2. The proviso appended to Article 335 of the
Constitution, cannot be said to have any application
whatsoever in this case. Lowering of marks for the
candidates belonging to the reserved candidates is not G
a constitutional mandate at the threshold. It is permissible
~ only for the purpose of promotion. Those who possess
the basic eligibility would be entitled to appear at the
main examination. While doing so, in regard to General
H
692 SUPREME COURT REPORTS (2009] 5 S.C.R.
~
-
A English whereas the minimum qualifying marks are 40%
for OCs, it would be 35% for BCs and 30% for SC/STs ,~

and physically handicapped persons. However, those
marks were not to be counted for ranking. Candidates
belonging to the reserved categories as specified in the
B notification are not required to pay any fee. Their age is >- '
relaxed upto five years. It is, theriefore, not correct to
contend that what is given by one hand is sought to be
taken by another. They can, thus, appear in the
examination for a number of times. Indisputably, the right
conferred upon the writ-petitioners - respondents in
c terms of Rules 22 and 22-A of the Andhra Pradesh State
and SuJ>ordinate Service Rules, 1996 was to be protected.
The extent of relaxation has been recognized. By reason
of such a provision, the right to be considered has not
been taken away. (Para 25] [712-G, H; 713-A-D]
D
Chattar Singh v. State of Rajasthan (1996) 11 SCC 742
and Pitta Naveen Kumar and Others v. Raja Narasaiah
Zangiti and Others (2006) 10 SCC 261, referred to.

E 5.1. Judging of merit may be at several tiers. It may
undergo several filtrations. Ultimately, the constitutional
scheme is to have the candidates who would be able to
serve the society and discharge the functions attached
to the office. Vacancies are not filled up by way of charity.
Emphasis has all along been made, times without -l .
F
number, to select candidates and/ or students based
upon their merit in each category. The disadvantaged
group or the socially backward people may not be able
to compete with the open category people but that would
not mean that they would not be able to pass the basic
G m!nimum criteria laid down therefor. (Para 26] (713-E, F]

5.2. Merit is not the monopoly of people living in
urban areas. The State must adopt some criteria. It having "
regard to its limited resources cannot allow lakhs and
H
A.P. PUBLIC SERVICE COMMISSION v. BALOJI 693
BADHAVATH & ORS.
f
lakhs of candidates to appear at the examination as also A
/' at the interview. It is bound to devise some procedure to
shortlist the candidates. Rule 4 of the Andhra Pradesh
Public Service Commission Rules of Procedure which
refers to Rules 22 and 22-A of the Andhra Pradesh State
.--1.. and Subordinate Service Rules, 1996 would apply only B
where shortlisting is done. The first part of the said Rule
empowers the Commission to restrict the number of
candidates to be called for interview to such extent as it
may deem fit. While shortlisting, however, it may hold a
written test or provide for a preferential or higher c
qualification and experience and only for that purpose it
is required to take into account the requirements with
reference to Rules 22 and 22A of the Andhra Pradesh
State and Subordinate Service Rules, 1996 and the rule
.,, of reservation in favour of local candidates. [Para 28] D
' ,...
[714-C-E]

Sangram Singh v. Election Tribunal, Kotah, Bhurey Lal
Baya (1955) 2 SCR 1 and Akhil Bharatiya Soshit Karamchari
Sangh (Railway) v. Union of India and Others (1981) 1 SCC
246, held inapplicable. E

... Ashoka Kumar Thakur v. Union of India and Others
(2008) 6 sec 1, referred to.

"Words and Phrases", Permanent Edition, Volume 22A,
J F
page 506 and "Advanced Law Lexicon", 3rd edition,
2005, page 907, referred to.

6. If category-wise statement is prepared, as has
been directed by the High Court, it may be detrimental to
the interest of the meritorious candidates belonging to G
the reserved categories. The reserved category
candidates have two options. If they are meritorious
" enough to compete with the open category candidates,
they are recruited in that category. The candidates below
them would be considered for appointment in the H
694 SUPREME COURT REPORTS [2009] 5 S.C.R.

A reserved categories. This is now a well-settled principle
of law as has been laid down by· this Court in several ''-
decisions. [Para 37]

Union of India and Anr. v. Satya Prakash and Ors. (2006)
B 4 SCC 550; Ritesh R. Shah v. Dr. YL. Yamul (1996) 2 SCR
>-
695 and R.K. Daria v. Rajasthan Public Service Commission,
(2007) 8 sec 785, relied on.

7. Reservation for women, haindicapped etc. is on a
horizontal basis. Reservation to the category of
c candidates has to be given irrespective of the class or
category of candidates. A final selection has to be made.
If such a procedure, as directed by the High Court, is to
be taken recourse to, the same would give rise to a
complexity. [Para 39] [717-E-G]
D
8. So far as the question o:f locus standi of the
appeliant to file the Special Leave Petition is concerned,
it has the locus standi. The High Court not only has set
aside the GOMs dated 31.12.1997 but it has also set aside ""
E the notification dated 27 .12.2omr. If the High Court's
judgment is to be implemented, a fresh selection
procedure has to be undertakErn by the appellant.
Furthermore, in terms of Order 41, Rule 4 of the Code of
Civil Procedure, the appellate court, in the event, finds
-
merit in the appeal at the instance of one of the ,.\
F respondents may set aside the entire judgment although
another respondent had not appealed thereagainst. The
Commission had undertaken the task of holding
preliminary examination. It had followed the procedure
laid down in its notification issued in this behalf and the
G GOMs issued by the State. It, therefore, could maintain a
writ petition. [Para 40 and 41] [718-D-F]
~
Thammanna v. K. Veera Reddy Ors. (1980) 4 SCC 62:
(1981) 1 SCR 73 and A.P. Public Service Commission v. P.
H
A.P. PUBLIC SERVICE COMMISSION v. BALOJI . 695
BADHAVATH & ORS.
i
Chandra Mouleesware Reddy (2006) 8 SCC 330, held A
inapplicable.

Case Law Reference:
.
• (1968) 1 SCR 721 relied on
B
4. 1992 Supp (3) sec 211 relied on

(1999) 1 sec 209 relied on

(2003) 11 sec 559 relied on

.• (1976) 2 sec 310 relied on c
1985 (2) APLJ 380 referred to

(1996) 11 sec 742 referred to
(2006) 10 sec 261 referred to D
'/"
(1955) 2 SCR 1 held inapplicable
(1981) 1 sec 246 held inapplicable

-I (2008) 6 sec 1 referred to
E
(2006) 4 sec 550 relied on
" (1996) 2 SCR 695 relied on
(2001) 8 sec 785 relied on
~

> (1980) 4 sec 62
F

(1981) 1 SCR 73 held inapplicable

"' (2006) 8 sec 330 held inapplicable

G
--. CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1 2244 of 2009.
~

r From the Judgment & Order dated 23.7.2008 of the High
Court of Andhra Pradesh in Writ Petition No. 16029 of 2008.
H
696 SUPREME COURT REPORTS [2009] 5 S.C.R.

A Guntur Prabhakar for the Appellants.

D. Mahesh Babu, D. Bharathi Reddy and C.S.N. Mohan
Rao for the Respondents.

The Judgment of the Court was delivered by
B
S.B. SINHA, J. 1. Leave granted.

2. Andhra Pradesh Public Se1rvice Commission is before
us aggrieved by and dissatisfied with a judgment and order
C dated 23.07.2008 passed by a Division Bench of the Andhra
Pradesh High Court in Writ Petition No. 16029 of 2008.

3. The Government of Andhra Pradesh used to issue
orders laying down norms to be adopted for filling up of
vacancies in Group - I services in the State comprising of
D Deputy Collectors, Commercial Tax Officers, Assistant
Prohibition and Excise Superintendents, Assistant
Commissioner of Labour, Deputy Superintendent of Police
Category-2, Divisional Fire Officers, District Registrars,
Assistant Audit Officer and Assistant Treasury Officer/ Assistant
E Accounts Officer. The selection process takes place in two
phases; the first being holding of an examination for the
purpose of shortlisting of the candidates and the second being
holding of the main examination followed by interview.

F 4. Both for preliminary examination as also the main
examination, two criteria used to be adopted; one for the
general category candidates and other for the reserved
category candidates.

5. Validity of the said procedure came up for consideration
G before a Division Bench of the Andhra Pradesh High Court as
far back in the year 1984 in S. Jafeer Saheb v. State of Andhra
·-
Pradesh [1985 (2) APLJ 380). Indisputably, a similar question
came up for consideration again in G. Raju v. Government of
A.P. rep. by its Secretary [Writ Petition No. 24247 of 2004
H decided on 31.12.2004)
- 1
A.P. PUBLIC SERVICE COMMISSION v. BALOJI
BADHAVATH & ORS. [S.B. SINHA, J.]
697

In S. Jafeer Saheb (supra), the contention of the State was A
that the reservation of posts used to be made while admitting
the candidates for examination itself and not in the final
selection in the ratio of 1:15. The question which, thus, posed,

.. -4.
was as to whether admission of candidates for the main
examination by applying compensatory preference even at the B
stage of admission in the main examination is violative of
Articles 14 and 16 of the Constitution of India. Taking note of
the provisions contained in Articles 14, 16 and 335 of the
Constitution of India, the High Court held:

"11. The purpose ofholding a screening test is to ensure c
the basic standard of eligibility of the candidates and even
at the stage of admission to the main examination the rule
of reservation of posts cannot be applied. Reservation for
applicants is not permissible under Art. 16(4).
D
12. The learned Advocate-General submits that if
reservation rule is not followed even at the stage of
admitting candidates for the main examination, a reserved
vacancy is likely to remain unfilled. It is nobody's case that
as many candidates as there are reserved vacancies have E
not been qualified for the main examination. Is there any
- rule of relaxation based on reservation for a pass in the
H.S.C. Examination or Intermediate Examination or B.A.
Examination? There can be no relaxation or waiver of a
). basic standard of performance. There can be no F
compromise with the maintenance of administrative
efficiency which is barred by Art. 335 of the Constitution.·

It was furthermore held:

"14. Time is now ripe for Courts to lay down the limits to G
the lowering of standards for the purpose of compensatory
preference. The intensity of compensatory preference
cannot be at the expense of even-handedness and merit
and cannot proliferate to such an extent as to prove fatal
to the basic proficiency and efficiency. The intensity must H
698 SUPREME COURT RIEPORTS [2009] 5 S.C.R.
'!'
-
A vary depending on the nature of the compensatory
discrimination whether it is primarily for individual benefit
or whether the quality of public service is directly affected.
Krishna Iyer, J., observed in State of Kerala v. N.M. Thomas
that "to relax basic qualification is to compromise with the
B minimum administrative efficiency and is presumably )r ~

barred by Art. 335". Lowering of standards for the purpose
of compensatory discrimination is limited to competing
commitments to efficient administration.

Public interest demands concern for quality and
c prohibits waiver or abandonment of quality. In Janki Prasad
v. State of Jammu & Kashmir, the Supreme Court
observed that the setting of absurdly low minimal scores
made it a "travesty of selection".
**"r ·~
D *** ***

16 ... When a candidate is ineligible or does not come up
to a basic standard, no relaJCation can be granted. As
already pointed out such concession of preference based
on reservation is not granted for a pass in the H.S.C.
E
Examination or Intermediate Examination or BA Degree
Examination, because they are eligibility test and not
proficiency test."

6. Indisputably, pursuant to or in furtherance of the said
F judgment of the High Court datedl 28.12.1984, the State of
Andhra Pradesh issued fresh G.O.Ms. No. 570 dated
31.12.1997, providing that the candidates who had applied for
Group - I services would be shortlisted based on a preliminary
examination (Screening Test) in the ratio of 1:50 to the total
G number of vacancies available at the material time irrespective
of community, the relevant portions whereof read as under:

"... The number of candidates to be admitted to the Written
examination (Convention Type) would be 50 (fifty) times to
the total number of vacancies available at material time
H
AP. PUBLIC SERVICE COMMISSION v. BALOJI 699
j
BADHAVATH & ORS. [S.B. SINHA, J.]
irrespective of communities. A

3. The papers except paper 2, i.e., General English may
be answered in English or Telugu or Urdu chosen by the
candidates. However, a candidate is not permitted to write
part of the paper in English and part of it in Telugu. B
4. The paper on General English is a qualifying one and
the standard of this paper is that of S.S.C. The minimum
qualifying marks in this paper are 40% for O.Cs. 35% for
B.Cs. and 30% for SC/STs and P.H. These marks are not
counted for ranking. c
5. In the event of the S.C. and S.T. candidates not coming
up for selection with the existing minimum prescribed for
the selection in the competitive examination conducted by
the commission, their selection shall be considered on the D
basis of rank with reference to their performance in the
written and Oral competitive examination."

7. Indisputably, when in terms of the said GOMs, a
notification in Advertisement No. 21 of 2003 calling applications
for Group - I Services was issued in the year 2003, another E
writ application came to be filed by G. Raju and seven others
questioning the legality thereof.

The Andhra Pradesh High Court by a judgment an order
~ dated 31.12.2004 passed in Writ petition No. 24247 of2004, F
opined:

"13. The contention of the learned counsel for the
petitioners is that at least the ratio of 1:50 should be
maintained in respect of each post reserved for community
G
reservation, in such an event, it will enable the reserved
candidates to effectively participate in the selection and
candidates from out of them would be selected within the
reservation category, but this contention though appears
to be appealing, cannot be accepted. There cannot be any
upper limit. If this has to be taken into consideration, then H
700 SUPREME COURT REPORTS {2009] 5 S.C.R.

A 1:50 ratio should be considered to be appropriate and
reasonable, and inasmuch as it is assured by the
A.P.P.S.C. that there will niot be any carry forward
vacancies, we are not inclined to interfere with the order
passed by the Tribunal."
B
However, in that writ petition, the validity of GOMs dated
31.12.1997 was not in question.

8. A notification bearing No. 31 of 2007 was issued for
Group - I Services Direct Recruitment (General) on 27.12.2007
C notifying 196 vacancies; inter a/ia laying down:

"3. Caste & Community: Community Certificate issued by
the competent authority in terms of G.O.Ms No. 58, SW(J)
Dept., dt: 12/5/97 should be submitted at appropriate time.
D As per General Rules for State and Subordinate Service
Rules, Rule 2(28) Explanation: - No person who professes
a religion different from Hinduism shall be deemed a
member of scheduled caste. BCs, SCs & STs belonging
to other States are not entitled lfor reservation, candidates
belonging to other States shall pay the prescribed fee of
E
Rs. 120/- (One hundred and Twenty only) through 1.P.O.
Otherwise such applications will not be considered and no
correspondence on this will be entertained.

4. Reservation for local candidaltes is not applicable as per
F concerned Departmental Special Rules, except Post
Code - 8, i.e., AAO in AP State Audit Service.

5. Reservation and eligibility in terms of General Rule 22
& 22-A of AP. State and Subordinate Service Rules are
G applicable.

*** *** ***

10. The Reservation to Women will apply as per Generat
Rules. For P.C. No. 066, women candidates are not
H eligible."
:: A.P. PUBLIC SERVICE COMMISSION v. BALOJI 701
• ., BADHAVATH & ORS. [S.B. SINHA, J.]
Relaxation of age was granted for the SC/ST and BCs A
candidates by five years. The reserved categories of
candidates were exempted from payment of fees.

9. Pursuant to or in furtherance of the said notification,
1,68,000/- candidates applied. A preliminary examination was B
~
held for all the candidates. Having regard to the ratio of the
number of candidates to be admitted for main examination
being 1: 50, 9,800 candidates were shortlisted to take the main
examination.

, 10. Respondents herein appeared at the said preliminary c
examination without any demur whatsoever. They, however,
having not been shortlisted filed an original application before
the Andhra Pradesh State Administrative Tribunal. The said
original application was dismissed.
., D
11. Aggrieved by and dissatisfied therewith, they filed a
writ petition before the Andhra Pradesh High Court which by
reason of the impugned judgment has been allowed. The
Commission was impleaded as a party in the writ petition.
The High Court, however, directed the Commission to E
prepare a statement showing the ratio as also category-wise
data of the candidates permitted to appear for the Main
examination as per the Commission. Despite noticing the ratio
laid down, in regard to certain category of candidates, as for
) example, OC, BC(C), BC(E), women and physically F
handicapped candidates, in its earlier decisions in S. Jafeer
Saheb (supra) as also in G. Raju (supra), it was held that in
the said case as the ratio of the candidates in respect of those
categories fell much short of 1:15 ratio, the said GOMs dated
31.12.1997 as also the notification dated 27.12.2007 were held G
to be ultra vires Articles 14 and 16 of the Constitution of India.
1"
It was stated that both in S. Jafeer Saheb (supra) as also
in G. Raju (supra), the GOMs No. 570 dated 31.12.1997 was
not challenged at all. H
702 SUPREME COURT REPORTS [2009] 5 S.C.R.

A The notification dated 27.122007 was said to be contrary
to the principles of natural justice as also Articles 14 and 16 of
the Constitution of India on the following premise:

(i) Non-implementation of community-wise reservation
attracts the wrath of Article 16 of the Constitution
B
of India.

(ii) The right of reservation must be recognized at all
levels. Although S. Jaf13er Saheb (supra) as also G.
Raju (supra) lay down good law but as community
C - wise reservation did not fall for consideration
therein, the said decisions were not binding upon
it.

(iii) Non-fixation of a cut-off mark for each category of
D community would also lbe violative of Articles 14 and
16 of the Constitution of India.

12. Mr. L. Nageshwara Rao, learned senior counsel
appearing on behalf of the appellant and Mr. R. _
Sundaravaradhan, learned senior counsel appearing on behalf
E of the respondent - State, would contend:

(i) As Article 16(4) of the Constitution of India provides
for an enabling provision, no writ of mandamus
could be issued.
F
(ii) Right of the candidates being only to be considered
for selection in terms of the extant rules, the High
Court committed an error in passing the impugned
judgment.
G (iii) The impugned judgment would be detrimental to
the interests of the meritorious candidates
belonging to the reserved category.
(iv) The writ petitioners - respondents having failed to
H qualify in the preliminary examination, are estopped
AP. PUBLIC SERVICE COMMISSION v. BALOJI 703
f BADHAVATH & ORS. [S.B. SINHA, J.]
and precluded from questioning the validity of GOMs A
No. 570 or the notification dated 27.12.2007 issued
by the appellant - Commission.

(v) Reservation for women and physically handicapped
4, persons being an incident of horizontal reservation B
and not a vertical reservation, the impugned
judgment cannot be sustained.

13. Mr. P.P. Rao, learned senior counsel appearing on
behalf of the respondents, however, while conceding that the
writ petitioners - respondents cannot claim any right of c
reservation and no writ of mandamus can be issued,
contended:

~
(i) As the Constitution contemplates upliftment of
x weaker sections by providing a percentage of seats D
for employment in the State and having regard to
the fact that both clauses (1) and (4) of Article 16
of the Constitution of India provide for valid
classification, the impugned judgment should not be
interfered with. E
(ii) Judging of the merit of the candidates having
regard to the provisions of Article 335 of the
Constitution of India per se should not allow the
State and the Commission to stop all the
~
)
candidates at the first gate and then prevent them F
from appearing at the main examination as thereby
constitutional scheme to provide reservation would
be frustrated to a great extent.
(iii) The means to achieve the constitutional object and G
the goals should not be defeated by inserting
-r procedural provisions as a result whereof what is
being given by one hand should not be permitted
to be taken away by the other.
(iv) Reservation made in favour of women, physically H
704 SUPREME COURT REPORTS [2009] 5 S.C.R.

A handicapped, etc., although pertains to horizontal
reservation, the candidates of the said categories
cannot be treated differently.

(v) A candidate only by appearing in an examination
cannot waive his fundamental or a statutory right.
B
(vi) The State having provided for reservation in terms
of Rules 22 and 22-A of the Andhra Pradesh State
and Subordinate Service Rules, 1996 and
furthermore, such a right having also been created
c in terms of Regulation 14-A of the Andhra Pradesh
Public Service Commission Regulations, 1963, the
writ petitioners - respondents obtained an
indefeasible right for consideration of their
candidature so as to enable them to compete with
D other candidates for appointment in the said post )(

which cannot be permitted to be taken away by
reason of the impugned GOMs No. 570 and the
notification dated 27.12.2007.
(vii) The expression "irrespective of communities" used
E
in GOMs No. 570 even otherwise cannot be read
in such a manner so as to violate the constitutional
scheme, as reservation is not based on any religion
or race, particularly in view of the fact that the
F
makers of the Constitution of India thought of a
casteless and classle:ss society. • .
(viii) The High Court having declared the GOMs No. 570
as unconstitutional and the State having not
preferred any special leave petition thereagainst,
G the Andhra Pradesh Public Service Commission
cannot be said to have any locus standi to maintain
this appeal. ..
14. The vacancies which were to be filled up by the State
pertained to Group - I services. The State indisputably subject
H
AP. PUBLIC SERVICE COMMISSION v. BALOJI 705
7 BADHAVATH & ORS. [S.B. SINHA, J.]
to the constitutional limitations having regard to its power A
contained in the proviso appended to Article 309 of the
Constitution of India is entitled to frame rules laying down the
mode and manner in which vacancies are to be filled up.
.-.J. 15. If the State has the legislative competence to frame B
rules, indisputably, it can issue governmental orders in exercise
of its power under Article 162 of the Constitution of India. It
adopted one procedure. It was held to be ultra vires by the
Andhra Pradesh High Court in S. Jafeer Saheb (supra). It
attained finality. The State amended the procedure in the light
of the said decision by GOMs No. 570 dated 31.12.1997. No
c
new policy was laid down which can be said to be contrary to
or inconsistent with the decision of the Andhra Pradesh High
Court in S. Jafeer Saheb (supra). A notification containing
'
)( similar provisions issued by the Andhra Pradesh Public Service
Commission in 2003 was questioned. It may be true that the D
validity of the GOMs itself was not questioned but if the terms
of the notification were held to be unconstitutional, GOMs could
have also been declared as such.
16. The Division Bench of the High Court indisputably was E
bound by the said decision. It, however, proceeded to examine
the constitutionality of the GOMs dated 31.12.1997 and the
notification dated 27 .12.2007 inter a/ia on the premise that the
validity of the said GOM and the notification was not tested on
) the touchstone of Articles 14 and 16 of the Constitution of India.
-.I< F
17. The Constitution of India lays down provisions both for
protective discrimination as also affirmative action. Reservation
of posts for the disadvantaged class of people as also seats
in educational institutions are provided for by reason of Articles
15 and 16 of the Constitution of India. Reservation made for G
the members of the Scheduled Castes, Scheduled Tribes and
..- other Backward Classes would, however, is subject to Article
,
335 of the Constitution of India. Concededly, no citizen of India
can claim reservation as a matter of right. The provisions
contained in Articles 15 and 16 of the Constitution of India are H
706 SUPREME COURT REPORTS [2009] 5 S.C.R.
t
A merely enabling provisions. No writ of or in the nature of
mandamus, thus, could be issued. [See C.A. Rajendran v.
Union of India & Others, (1968) 1 SCR 721 at 731-733, Indra
Sawhney and Others v. Union of India and Others [1992 Supp
(3) SCC 217, para 165 to 169, 428 to 432, 741 and 742, Ajit
B Singh and Others (II) v. State of Punjab and Others (1999) 7
SCC 209, para 32 to 39, State of Punjab and Others v. Manjit
Singh and Others (2003) 11 SCC ei59, para 7 and 12)

18. The State, however, have made provisions for
C reservation. Indisputably, the appellant - Commission has
made regulations known as Andhra Pradesh Public Service
Commission Regulations, 1963, Regulation 14-A whereof
reads as under:

"It shall be necessary for the Commission in the matter of
y
D recruitment to the posts and se,rvices to strictly adhere to
wherever applicable the provisions contained:

(i) in the General Rule 22 and 22-A;"

19. The rules of procedure for holding the said examination
E have also been prescribed known as the Andhra Pradesh
Public Service Commission Rules of Procedure; Rule 4
whereof reads as under:

"4. Where a direct recruitment is to be made by selection,
F i.e., after interview only, and where the number of qualified
petitioners is unduly large having regard to the actual
number of vacancies available, the Commission may
restrict the number of candidates to be called for interview
to such extent as it may deem fit. Such shortlisting may
G be done by the Commission either by holding a written test
or on the basis of preferential or higher qualifications and
experience and after taking into account the requirements
with reference to the Rules 22, 22-A of the General Rules
for State and Subordinate Services and the Rule of
reservation in favour of local candidates where they are
H
AP. PUBLIC SERVICE COMMISSION v. BALOJI 707
BADHAVATH & ORS. [S.B. SINHA, J.]
applicable." A

20. The State of Andhra Pradesh in exercise of its power
conferred upon it by the proviso appended to Article 309 of the
Constitution of India framed rules known as the Andhra Pradesh
State and Subordinate Service Rules, 1996. Rules 22 and 22- B
A thereof indisputably provide for reservation for appointments
to a service, class or category in favour of Scheduled Castes,
Scheduled Tribes, Backward Classes, women, physically
handicapped, meritorious sportsmen, ex-servicemen, etc.
Special rules and adhoc rules have also been made for
reservation of women by way of Rule 22-A thereof, stating: C

"22-A. Women reservation in appointment:
Notwithstanding anything contained in these rules or
special rules or Adhoc Rules:
D
(1) In the matter of direct recruitment to posts for which
women are better suited than men, preference shall be
given to women:

Provided that such absolute preference to women
shall not result in total exclusion of men in any category of E
posts.

(2) In the matter of direct recruitment to posts for which
women and men are equally suited, there shall be
) reservation to women to an extent to 33 1/3% of the posts F
in each category of Open Competition, Backward Classes
(Group - A), Backward Classes (Group - B), Backward
Classes (Group - C), Backward Classes (Group - D),
Scheduled Castes, Scheduled Tribes and Physically
Handicapped and-Ex-servicemen quota: .. ." G
21. Appellant - Commission which has been constituted
in terms of Article 315 of the Constitution of India is bound to
conduct examination for appointment to the services of the
State in terms of the Rules framed by the State. It is, however,
H
708 SUPREME COURT REPORTS [2009) 5 S.C.R.

A free to evolve procedure for conduct of examination. While
conducting the examination in a fair and transparent manner
as also following known principles of fair play, it cannot
completely shut its eyes to the constitutional requirements of
Article 335 of the Constitution of lnidia, which reads as under:
B
"335 - Claims of Scheduled Castes and Scheduled Tribes
to services and posts

The claims of the members of the Scheduled Castes and
the Scheduled Tribes shall be taken into consideration,
C consistently with the maintenance of efficiency of
administration, in the making of appointments to services
and posts in connection with the affairs of the Union or of
a State:

D Provided that nothing in this article shall prevent in making )( \
of any provision in favour of the members of the Scheduled
Castes and the Scheduled Tribes for relaxation in
qualifying marks in any examination or lowering the
standards of evaluation, for reservation in matters of
promotion to any class or classes of services or posts in
E
connection with the affairs of the Union or of a State."

In State of Kera/a and Another v. N.M. Thomas and
Others [(1976) 2 SCC 310), this Court opined:

F "41. Article 335 of the Constitution states that claims of
members of the Scheduled Castes and scheduled tribes
shall be taken into consideration in the making of
appointments to the services and posts in connection with
affairs of the State consistent with the maintenance of
G efficiency of administration. The impugned rule and the
impugned orders are related to this constitutional mandate.
Without providing for relaxation of special tests for a
temporary period it would not have been possible to give
adequate promotion to the lower division clerks belonging
to Scheduled Castes and scheduled tribes to the posts of
H
A.P. PUBLIC SERVICE COMMISSION v. BALOJI 709
i'
BADHAVATH & ORS. [S.B. SINHA, J.]
upper division clerks. Only those lower division clerks who A
L were senior in service will get the benefit of the relaxation
contemplated by Rule 13-M and the impeached orders.
Proipotion to upper division from lower division is governed
by the rule of seniority subject only to passing of the
' -..( qualified test. The temporary relaxation of test qualification B
made in favour of Scheduled Castes and scheduled tribes
is warranted by their inadequate representation in the
services and their overall backwardness. The classification
~ of the members of the Scheduled Castes and scheduled
' tribes already in service made under Rule 13-M and the c
challenged orders for exempting them for a temporary
period from passing special tests are within the purview
of constitutional mandate under Article 335 in
consideration of they claims to redress imbalance in public
')( service and to bring about parity in all communities in D
public services." "
22. How the Commission would judge the merit of the
candidates is its function. Unless the procedure adopted by it
is held to be arbitrary or against the known principles of fair
play, the superior courts would not ordinarily interfere therewith. E
The State framed Rules in the light of the decision of the High
Court in S. Jafeer Saheb (supra). Per se, it did not commit any
illegality. The correctness of the said decision, as noticed
..
..' J hereinbefore, is not in question having attained finality. The
matter, however, would be different if the said rules per se are F
found to be violative of Article 16 of the Constitution of India.
Nobody has any fundamental right to be appointed in terms of
Article 16 of the Constitution of India. It merely provides for a
right to be considered therefor. A procedure evolved for laying
down the mode ·and manner for consideration of such a right G
can be interfered with only when it is arbitrary, discriminatory
-y
or wholly unfair.
23. We may notice that in Chattar Singh v. State of
Rajasthan [(1996) 11 SCC 742], Rule 13 of the Rajasthan
H
710 SUPREME COURT REPORTS [2009] 5 S.C.R.

A State and Subordinate Services (Direct Recruitment by
Combined Competitive Examinations) Rules, 1962 prescribing
the mode of conducting preliminary as also main examination
had been interpreted, opining :

"... What requires to be done is that the Public Service
B
Commission has to consider the number of vacancies
notified or likely to be filled in the year of recruitment for
which notification was published. Then candidates who had
appeared for the Preliminary Examination and qualified for
Main Examination are to be screened by the test. The
c object is to eliminate unduly long list of candidates so that
opportunity to sit for Main Examination should be given to
candidates numbering 15 times the notified posts/
vacancies in various services; in other words for every one
post/vacancy there should be 15 candidates. There would
D be wider scope to get best of the talent by way of ·
)C

competition in the examination. The ultimate object is to
get at least three candidates or as is prescribed, who may
be called for viva voce. Therefore, the lowest range of
aggregate marks as cut-off for general candidates should
E be so worked out as to get the required number of
candidates including OBCs, Scheduled Castes and
Scheduled Tribes. The lowest range would, therefore, be
worked out in such a way that candidates numbering 15
times the notified posts/vacancies would be secured so
F as to afford an opportunity to the candidates to compete
in the Main Examination.
.!_
-
15. Under the proviso, if that range has not been reached
by the candidates belonging to the SCs or the STs, there
may be 5% further cut-off from the last range worked out
G
for the general candidates so as to declare them as
qualified for appearing in the Main Examination. In other
,
words, where candidates belonging to the SCs and STs
numbering 15 times the total vacancies reserved for them
. .

are not available then the Service Commission has to go
H
AP. PUBLIC SERVICE COMMISSION v. BALOJI 711
BADHAVATH & ORS. [S.B. SINHA, J]
' down further and cut off 5% of the marks from the lowest A
of the range prescribed for general candidates and then
declare as eligible the SC and ST candidates who secured
5% less than the lowest range fixed by PSC for general
candidates so as to enable them to appear for the Main
Examination. The candidates who thus obtain qualifying B
marks are eligible to appear and write the Main
"""
Examination. The respective proportion of 1:3 or as may
be prescribed and candidates who qualified in the Main
Examination will be called by the Commission, in their
discretion, for interview. The Commission shall award c
marks to each candidate interviewed by them, having
regard to their character, personality, address, physique
and knowledge of Rajasthani culture as is in vogue as per
rules. However, for selection to the Rajasthan Police
Service, candidates having 'C' Certificate of NCC will be D
'I given preference. The marks so awarded shall be added
to the marks obtained in the Main Examination by each
such candidate.
-
·<

16. In working out this procedure, if the minimum of 15
times of the candidates are identified and results declared, E
it would not be necessary to pick up more General/
Reserved candidates. It would not be necessary to declare
the result of more than 15 times the total notified vacancies/
posts so as to enable them to compete in the Main
.... } Examination. The object of screening test is to eliminate F
I unduly long number of persons to appear for Main
Examination. If more candidates are called by declaring
their result in Preliminary Examination, the object of Rule
13 would be frustrated."
G
24. The Commission contends that in all the past
examinations held, the vacancies pertaining to the reserved
categories had been filled up. The vacancies were not required
to be carried forward as sufficient numbers of candidates
belonging to the reserved category were available. It is in the
H
712 SUPREME COURT REPORTS [2009) 5 S.C.R.

A aforementioned context, a statement was made in G. Raju
(supra) that the Commission shall not carry forward the
vacancies.

In Pitta Naveen Kumar and Others v. Raja Narasaiah
B Zangiti and Others [(2006) 10 SCC 261], this Court held:

"52. The authority of the State to frame rules is not in
question. The purport and object for which the said
notifications were issued also cannot be said to be wholly
arbitrary so as to attract the wrath of Article 14 of the
C Constitution of India. The appellants herein no doubt had
a right to be considered but their right to be considered
along with other candidates had not been taken away.
Both the groups appeared in the preliminary examination.
Those who had succeeded in the preliminary examination
D were, however, allowed to sit in the main examination and
the candidature of those had been taken into consideration
for the purpose of viva voce test who had passed the
written examination."

E 25. Indisputably, the preliminary examination is not a part
of the main examination. The merit of the candidate is not
judged thereby. Only an eligibHity criterion is fixed. The papers
for holding the examination comprise of General Studies and
Mental Ability. Such a test must be held to be necessary for
F the purpose of judging the basic eligibility of the candidates to
hold the tests. How and in what manner the State as also the -\
Commission would comply with the constitutional requirements
of Article 335 of the Constituti<>n of India should ordinarily not
be allowed to be questioned.
G The proviso appended to Article 335 of the Constitution,
to which our attention has been drawn by Mr. Rao, cannot be
said to have any application whatsoever in this case. Lowering
of marks for the candidates belonging to the reserved
candidates is not a constitutional mandate at the threshold. It
H
A.P. PUBLIC SERVICE COMMISSION v. BALOJI 713
BADHAVATH &ORS. [S.B. SINHA, J.]
is permissible only for the purpose of promotion. Those who A
possess the basic eligibility would be entitled to appear at the
main examination. While doing so, in regard to General English
whereas the minimum qualifying marks are 40% for OCs, it
would be 35% for BCs and 30% for SC/STs and physically
handicapped persons. However, those marks were not to be B
counted for ranking. We have noticed hereinbefore, that
candidates belonging to the reserved categories as specified
in the notification are not required to pay any fee. Their age is
relaxed upto five years. It is, therefore, not correct to contend
that what is given by one hand is sought to be taken by another. c
They can, thus, appear in the examination for a number of
times. Indisputably, the right conferred upon the writ-petitioners
- respondents in terms of Rules 22 and 22-A of the Andhra
Pradesh State and Subordinate Service Rules, 1996 was to
be protected. The extent of relaxation has been recognized. By 0
reason of such a provision, the right to be considered has not
been taken away.
26. Judging of merit may be at several tiers. It may undergo
several filtrations. Ultimately, the constitutional scheme is to
have the candidates who would be able to serve the society E
and discharge the functions attached to the office. Vacancies
are not filled up by way of charity. Emphasis has all along been
made, times without number, to select candidates and/ or
students based upon their merit in each category. The
disadvantaged group or the socially backward people may not F
be able to compete with the open category people but that
would not mean that they would not be able to pass the basic
minimum criteria laid down therefor.

27. We have been informed at the bar that 12 G
handicapped people have appeared at the main examination
and, thus, it would be possible to fill up the posts even from
that category of candidates.

28. Submission of Mr. Rao that by reason of such a '
H
714 SUPREME COURT REPORTS [2009) 5 S.C.R.

A process, only the forward sections of backward classes who
have the advantage of undergoing coaching classes, etc. would
be given preference may not be correct. No statistical data had
been placed before the High Court or before us. We have not
been furnished any information as to on what basis, such a
B contention could be raised. All the candidates are highly
educated. Merit is not the monopoly of people living in urban
areas. The State must adopt some criteria. It having regard to
its limited resources cannot allow lakhs and lakhs of candidates
to appear at the examination as also at the interview. It is bound
c to devise some procedure to shortlist the candidates. Rule 4
of the Andhra Pradesh Public: Service Commission Rules of
Procedure which refers to Rules 22 and 22-A of the Andhra
Pradesh State and Subordinate Service Rules, 1996 would
apply only where shortlisting is done. The first part of the said
Rule empowers the Commission to restrict the number of
0
candidates to be called for interview to such extent as it may
deem fit. While shortlisting, however, it may hold a written test
or provide for a preferential or higher qualification and
experience and only for that purpose it is required to take into
E account the requirements with reference to Rules 22 and 22A
of the Andhra Pradesh State and Subordinate Service Rules,
1996 and the rule of reservation in favour of local candidates.

29. Strong reliance has been placed by Mr. Rao on
Sangram Singh v. Election Tribunal, Kotah, Bhurey Lal Baya
F ((1955) 2 SCR 1) wherein Vivian Bose. J., stated as under:

"Now a code of procedure must be regarded as such. It
is procedure, something designed to facilitate justice and
further its ends: not a penal enactment for punishment and
penalties; not a thing designed to trip people up. Too
G
technical a construction of sections that leaves no room
for reasonable elasticity of interpretation should therefore
be guarded against (provided always that justice is done "
to both sides) lest the very means designed for the
furtherance of justice be used to frustrate it."
H
-<
-< AP. PUBLIC SERVICE COMMISSION v. BALOJI 715
I' BADHAVATH & ORS. [S.B. SINHA, J.]
The said observation was made keeping in view the A
concept of jllStice. By reason of providing for a preliminary
examination, the right of the reserved category candidates has
not been taken away. The means cannot be allowed to defeat
the ends which the constitutional scheme seeks to achieve.
_...,
B
30. Reliance has also been placed by Mr. Rao on Akhil
Bharatjya Soshit Karamchari Sangh (Railway) v. Union of
India and Others [(1981) 1 SCC 246] wherein this Court held:

"76. Proceeding on this footing, the fundamental right of
equality of opportunity has to be read as justifying the c
categorisation of SCs & STs separately for the purpose
of "adequate representation" in the services under the
State. The object is constitutionally sanctioned in terms, as
Articles 16 (4) and 46 specificate. The classification is just
and reasonable. We may, however, have to test whether D
the means used to reach the end are reasonable and do
not outrun the purposes of the classification. Thus the
scope of the case is narrowed down."

31. We have proceeded on the same assumption. What
E
was in question in that case was as to whether in matter of
promotions reservation of posts for SC/ST candidates is
unconstitutional. It is now a settled law that it is not. The said
observation inter a/ia was in tone with the opinion of Ray, CJ
f in N.M. Thomas (supra).
F
The said observations, in our opinion, have no application
to the fact of the present case.

32. Submission of Mr. Rao is that the expression
"irrespective of communities" has wrongly been used. In support G
of the said contention reliance has been placed on the
expression "Irrespective of Race" in the Words and Phrases,
" Permanent Edition, Volume 22A, page 506, which is in the
following terms:
H
716 SUPREME COURT REPORTS [2009] 5 S.C.R.

A "By Act May 2, 1890, c. 182 § 31, 26 Stat. 94, Sections
566, 567, Mansf. Dig., was extended over Indian Territory
with a proviso excepting Indians and their estates. By act
June 7, 1897, C.3, § 1, 30 Stat. 83, such laws were made
to apply to all persons in the territory "irrespective of race"
B and by the Curtis Act June 28, 1898, C. 517, § 26, 30 Stat.
504, it was provided that the laws of the Indian tribes
should not longer be enforced. Held that by virtue of such
provisions, a noncitizen husband of a Creek allottee who
died after the birth of a child of the marriage was entitled
c by the curtesy to a life estate in her allotted lands.
Armstrong v. Wood, 195 F. 137, 141"
33. The word "community", however, is understood in
different senses, keeping in view the purport and object for
which the said term is used. It may be given a natural meaning. v
D It may have to be read along with the words 'caste' and
'religion' in which event it will have ti:> have a narrower meaning
than the dictionary meaning of a body of people having same
common interest. [See Advanced Law Lexicon, 3rd edition,
2005, page 907]
E
34. Indisputably, when the said words were used, it took
its clue from S. Jafeer Saheb (supra).

The expression might have been loosely used but its
purport and object had been understood by candidates
F including the writ petitioners. The provisions for holding the
preliminary examination were for the purpose of maintaining a
basic standard. The High Court has directed deletion of the
said words.

G 35. Mr. P.P. Rao has relied upon the following paragraph
of the decision of this Court in N.M. Thomas (supra):

"43. Scheduled Castes and scheduled tribes are not a
caste within the ordinary meaning of caste. In Bhaiyala/ v.
Harikishan Singh12 this Court held that an enquiry whether
H
A.P. PUBLIC SERVICE COMMISSION v. BALOJI 717
BADHAVATH & ORS. [S.B. SINHA, J.]
"'
the appellant there belonged to the Dohar caste which was A
not recognised as a scheduled caste and his declaration
that he belonged to the Chamar caste which was a
scheduled caste could not be premitted because of the
provisions contained in Article 341. No court can come to
a finding that any caste or any tribe is a scheduled caste B
or scheduled tribe. Scheduled caste is a caste as notified
, under Article 366(25). A notification is issued by the
President under Article 341 as a result of an elaborate
enquiry. The object of Article 341 is to provide protection
to the members of Scheduled Castes having regard to the c
economic and educational backwardness from which they
suffer."

36. For the views, we have taken earlier, it is not
necessary for us to go into the above mentioned larger
question particularly having regard to the recent decision of this D
Court in Ashoka Kumar Thakur v. Union of India and Others
[(2008) 6 sec 11
37. One other aspect of the matter must be kept in mind.
E
If category-wise statement is prepared, as has been
directed by the High Court, it may be detrimental to the interest
of the meritorious candidates belonging to the reserved
categories. The reserved category candidates have two
options. If they are meritorious enough to compete with the
F
open category candidates, they are recruited in that category.
The candidates below them would be considered for
appointment in the reserved categories. This is now a well-
settled principle of law as has been laid down by this Court in
several decisions. [See for example, Union of India and Anr.
V. Satya Prakash and Ors. (2006) 4 SCC 550, para 18 to 20, G
Ritesh R. Shah v. Dr. Y.L. Yamul (1996) 2 SCR 695 at 700-
j '
701, R.K. Daria v. Rajasthan Public Service Commission,
(2007) 8 sec 785, para 9)

H
718 SUPREME COURT REPORTS [2009) 5 S.C.R.

A 38. As we have entered into the merit of the matter, in our
opinion, it is not necessary to determine the question as to
whether the writ petitioners - respondents having appeared in
the examination were estopped and precluded from filing the
writ petition.
B
39. Reservation of women, handicapped etc. is on a
horizontal basis. Reservation to the category of candidates has
to be given irrespective of the class or category of candidates.
A final selection has to be made. If such a procedure, as
C directed by the High Court, is to be taken recourse to, the same
would give rise to a complexity.

40. So far as the question of locus standi of the appellant
to file this Special Leave Petition is concerned, we are of the
opinion that it has the locus standi. The High Court not only has
D set aside the GOMs dated 31.12.1997 but it has also set aside
the notification dated 27.12.2007. If the High Court's judgment
is to be implemented, a fresh selection procedure has to be
undertaken by the appellant. Furtherml)re, in terms of Order 41,
Rule 4 of the Code of Civil Procedure, the appellate court, in
E the event, finds merit in the appeal at the instance of one of
the respondents may set aside the entire judgment although
another respondent had not appealed thereagainst.
41. The Commission had undertaken the task of holding
preliminary examination. It had followed the procedure laid
F down in its notification issued in this behalf and the GOMs
issued by the State. It, therefore, could maintain a writ petition.
42. Mr. Rao, however, submits that in order to maintain
an appeal, the Commission should have been a 'person
G aggrieved'. Reliance in this behalf has been placed on
Thammanna v. K. Veera Reddy Ors. [(1980) 4 SCC 62 :
(1981) 1 SCR 73] wherein in the context of the provisions of
Section 116C of the Representation of People Act, 1951, it
was held:
H
A.P. PUBLIC SERVICE COMMISSION v. BALOJI 719
BADHAVATH & ORS. [S.B. SINHA, J.]
"'
"14 ... As a general proposition, therefore, it may safely be A
stated that before a person is entitled to maintain an
appeal under Section 116-C, all the conditions mentioned
below, must be satisfied:

-<, (1) that the subject-matter of the appeal is a
B
conclusive determination by the High Court of the rights
with regard to all or any of the matters in controversy,
between the parties in the election petition,

(2) that the person seeking to appeal has been a
party in the election petition, and c
(3) that he is a "person aggrieved", that is a party who
has been adversely affected by the determination ... "

'f No exception to the rule can be taken. We are not,
however, dealing with the election petition. We are dealing with D
a rule laid down by a constitutional authority as also the State.
43. Mr. Rao also relied upon the following paragraph of a
decision of this Court in A.P. Public Service Commission v.
P. Chandra Mouleesware Reddy [(2006) 8 SCC 330): E

"13. The State of Andhra Pradesh, we may notice, did not
question the order of the Tribunal. The Commission was
required to carry out fresh exercise in compliance with the
f directions of the Tribunal. For the said purpose, no fresh
F
selection process was to be undertaken. If the State did
not have any objection to fill up the said posts realising the
mistake committed by it; we fail to see any reason as to
why the Commission should have felt aggrieved by the
order of the Tribunal."
G
In that case, the State had accepted the judgment of the
" High Court. A mistake on the part of the State to issue the
impugned direction was in question therein. It was in that context
the aforementioned observations had been made.
H
720 SUPREME COURT REPORTS (2009) 5 S.C.R.

A Therein 19 posts were to be filled up whereas a direction
was issued only to fill up ten posts. The Tribunal directed the
State to fill up all 19 posts. The State of Andhra Pradesh did
not question the order of the Tribunal. Even the Commission
was not required to carry out any fresh exercise to comply with
B the direction of the Tribunal. As the order of the Tribunal was
not found to be unjustified, the High Court refused to interfere
therewith. The observations were made only in the
aforementioned context.
44. For the reasons aforementioned, the impugned
C judgment cannot be sustained, which is set aside accordingly.
The appeal is allowed. However, in the facts and circumstances
of the case, there shall be no order as to costs.
G.N. Appeal allowed. y