Jeevan Reddy, J.@mdashBy G. O. Ms. No. 604, Revenue, dated 23-5-1977, sub-rule (7) was added in Rule 10 of the A.P. (Andhra Area) Village Offices Service Rules, 1969. It reads as follows:-
"(7) Out of every two vacancies of the posts of "Class I Village Officers" specified in rule 3 arising in a revenue division, the second vacancy shall be filled up from among the qualified candidates belonging to the Scheduled castes, Scheduled Tribes and Backward Classes."
The expressions ''Village Office'' and ''Village Officer'' are defined by clauses (k) and (1) in Rule 2 of the Rules, they read as follows:-"(k) ''Village Office'' means any of the offices held by a headman, munsiff, reddy, monigar, peddakapu, patel, karnam, patwari, neerganti, neeradi, vetti, kawalkar, toti, talayani, tandalgar, sethsindhi or any such village office by whatever designation it may be locally known.
Explanation:- For the purposes of these rules, a village office is an office of profit under the Government and the holder of that office is a public servant within the meaning of section 21 of the Indian Penal Code".
"(1) ''Village Officer'' means any person who holds any of the village offices of headman, munsif, reddy, monigar, peddakapu, patel, karnam, or patwari or any such village office by whatever designation it may be locally known."
2. Rule 3 mentions the classes and categories of village officers and village servants. In so far as it is relevant for our purposes, it reads as follows:-
"3. The Service shall consist of the following classes and categories of village officers and village servants:-
CLASS I - VILLAGE OFFICERS
Category (1):-Headman, Munsiff, Reddy, Monigar, Peddakapu, Patel and their assistants.
Category (2):-Karnam, Patwari and their assistants.
Category (3):-Triune Officer.
CLASS II - VILLAGE SERVANTS
Category (1):-Vetti, Kawalkar, Toti, Talayari, Tandalgar and Sethsindhi.
Category (2):-Neerganti and Neeradi".
The appointing authority in the case of village-officers in the Revenue Divisional Officer.
Rule 10 prescribes the qualifications in the case of village - officers in category (I), as well as village officers in category (2). It is not necessary to refer to the other provisions in the said Rules.
3. Prior to the introduction of sub-rule (7) in Rule 10, there was no provision for reservation in favour of either backward classes, or scheduled-castes or scheduled-tribes, in the mailer of appointment to the said posts. It is for the first time that such a provision is made, obviously with a view to provide adequate representation in the village-Offices to the members of backward classes, scheduled-castes and Scheduled-tribes. Art. 16 (4) of the Constitution permits such reservation. The validity of the said rule and its implementation is called in question in this batch of writ petitions.
4. It is not necessary to state the facts in each of the writ petitions. It would be sufficient to refer to the facts in W.P. No. 3525/1978. I will refer to the facts in other writ petitions wherever they are necessary.
5. The father of the petitioner in W. P. No. 3525/78 was the permanent village Munsif of Chimalamarri village in Narasaraopet, Taluk, Guntur District. He died on 25-11-1977. On 14-12-1977, the Revenue Divisional Officer issued a notification calling for applications for regular appointment to the said post. The notification did not mention that the post was reserved for members of backward classes, Scheduled-castes or schedule-tribes. Applications were invited from all eligible candidates. The last date for receipt of applications was 31-12-1977. Only the petitioner and the 3rd respondent applied in pursuance to the said notification. The 3rd respondent belongs to backward classes, while the petitioner does not belong to any of the backward classes, scheduled castes or Scheduled tribes. At the time of consideration however, the Revenue Divisional Officer proceeded to treat the said post as having been reserved under sub-rule (7), impugned herein. In other words, the petitioner was sought to be eliminated altogether from consideration with reference to the said sub-rule. It is in the above circumstances that the petitioner approached this Court.
6. Sri M. Chandrasekhara Rao, the learned counsel for the petitioner, raised the following contentions, viz., (i) that, constituting the Revenue Division as a unit for applying the rule of reservation, is arbitrary and discriminatory. There is no basis for classifying the Revenue Division as a unit, nor does the said classification has any nexus with the object; (ii) that, reservation of 50 per cent of the posts is bad, according to the pronouncement of the Supreme Court in
7. Sri E. Manohar, the learned Counsel appearing in W.P. No. 2707/78 while supporting the contentions of Sri M. Chandrasekhara Rao, raised the following two further contentions (which I shall treat as contentions (v) and (vi);
(v) Reservation of appointments or posts in favour of any backward class of citizens within the meaning of Art. 16 (4) can be made only by the ''State'' as defined in Art. 12, and by none else. The Governor, according to the said definition, is not included within the expression ''the State''. For that reason, the impugned rule made by him in exercise of the power conferred upon him by the proviso to Art. 309 of the Constitution of India, is, therefore incompetent; and (vi) assuming that the rule is valid, the preparation of roster in the concerned division is bad. The vacancies arising from dismissal of incumbents-which dismissal is subject matter of appeals should not be and cannot be counted as permanent vacancies. If the vacancies arising on that count are excluded, the vacancy for which the petitioner in W.P. No. 2707/78 has applied, will be an open vacancy. (In this case too, it may be noted, a notification was published calling for applications from all, but at the time of consideration, it was sought to be confined only reserved categories).
8. Mr. M. Mukunda Rao, the learned counsel appearing in W. P. No. 4557, 4563, 4574, and 5117 of 1978, adopted the above contentions.
9. Mr. N. Subba Reddy, the learned counsel appearing for Mr. M. Jagannadha Rao in W.P. No. 5134/78 adopted a slightly different stand. According to him, the rule of reservation must be applied separately in each of the categories in Class-I, mentioned in Rule 3. According to him'' the preparation of a combined list/roster for all the Class-I posts in a division, is bad. In fact, he is supported in this stand by a clarification issued by the Government of Andhra Pradesh in its Memorandum No. 2697/H. 1/77-5, dated 3-10-1978. Learned Counsel, however, attacked the roster prepared for the particular division with retrospective effect from 1950. He too says that the rule being prospective, roster must be prepared only in respect of those vacancies which have arisen on or after 19-6-1977.
10. I will first deal with the contention raised by Mr. E. Manohar, which I have mentioned as contention (v).
Art. 16 (4) reads as follows:-
"(4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State".
The expression ''the State'' is defined in Art. 12 in the following words:-
"12. In this Part, unless the context otherwise requires, ''the State'' includes the Government and parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India".
Now, the contention of Mr. E. Manohar is that the Governor is not included within the definition of the expression ''the State'' and, therefore, he is not competent to provide for a reservation within the meaning of Art. 16 (4). I find it difficult to agree with this contention. The definition of ''the State'' in Art. 12 is not an exhaustive definition, but an inclusive one. The object of Art. 12 is to extend the meaning of the expression ''the State'', and not to restrict it. It is well settled that when an interpretation clause states that a certain term includes certain specified matters, it is implied that the expression retains its original meaning and content. It does not curtail the natural content of the expression. Further, the definition like any other words in the statute, has to be understood having regard to the context and the scheme of the enactment. Now Art. 16 (4) empowers the State to reserve certain appointments or posts under the State in favour of backward class of citizens which'' in its opinion, is not adequately represented in the services under the Stale. It is thus, undoubtedly, a provision relating to and dealing with the recruitment to the services under the State and the conditions of service of such employees. But, Anr. 16 (4) by itself docs pot provide the reservations; it is only an enabling provision. The actual reservations have to be provided either by a law or rate made under Art. 309. The proviso to Art. 309 expressly expowers the President and the Governor to make rules regulating the recruitment and the conditions of service of persons appointed to services and posts under the Union or a State, as the case may be, until provision in that behalf is made by an Act of the appropriate Legislature under the Article, and such Rules areas effective as any other statutory provision. They can be made both prospectively and retrospectively, and their validity can be impeached only on the ground of violation of the the provisions in Part - III or any other constitutional provision, but on no other ground. See
3. Mr. Manohar, however, relied upon certain observations of the Mysore High Court in
"The reservation to by made under Art. 16(4) is what may be made by the State and not by the Governor "enacting rules either under the proviso to Art. 309 or under Art. 234, and the fixation of a smaller percentage of marks for succes it in a competitive examination, being no reservation in any sense of the term under Article 16(4), is not one which even the State can make ".
Having Said this the learned judges observbed :-
"It is, however, unnecessary to pursue this discussion or to express any definite opinion on this question since the fixation of the qualifying marks by the Commission was itself, in my opinion, not within its competence ".
Mr. Manohar concedes that the observations relied upon by him were really not necessary for the decision of the case and are in the nature of obiter. Neither this question was posed for the decision of the Court nor was there any occasion, in the circumstances and findings record in that case for going into the question whether the Governor, while making rules under the proviso to Art. 309, is included within the definition of the expression ''the State'' contained in Art. 12, and whether he is empowered to make a rule providing for reservation on within the meaning of Art. 16 (4). In any event, for reasons given hereinbefore, I am unable to agree with the above observations of the Mysore High Court.
4. On the other hand, the learned Government pleader relies upon certain observations in Dasu Rayudu vs. Public Service Commission 1966 I. An. WR. 403 at p. 414. Even here, it must be conceded, the present question was Dot directly raised, nor considered. The paragraph relied upon by the learned Government pleader reads :-
"It was then contended that the Governor could not have issued G. O. Ms. No. 903; (the said G. O. is one relatable to Art. 16 (4). We do not see any force in it. Under Art. 309 it is the Governor who can make rules regulating the recruitment and the conditions of service until provision in that behalf is made by the Legislature. Admittedly, no legislative measure so far has been enacted, the Governor, therefore, continues to have the power of amending service rules. It is only under that power that the Governor has issued the impugned G. O. and no fault can therefore be found in his action,
"The power to promulgate Ordinances under Art. 123, to suspend the provisions of Articles 268 to 279 during any emergency, to declare failure of the constitutional machinery in States under Art. 356, to declare a financial emergency under Art. 360, to make rules regulating the recruitment and conditions of service of persons appointed to posts and services in connection with the affairs of the Union under Art. 309 - to enumerate a few out of the various powers - are not powers of the Union Government; these are powers vested in the President by the Constitution arid incapable of being delegated or entrusted to any other body or authority under Article 258 (1)"
5. For the above reasons, it must be held that the impugned rule made by the Governor is competent and warranted by Clause (4) of Art. 16 of the Constitution of India.
6. I will now take up the first contention of Mr. M. Chandrasekhara Rao. His reasoning runs as follows:-
''''The village-offices are not a class, category, or cadre. These posts are confined to a particular village. They are not inter-transferable. For purposes of appointment, the village ie a unit. If so, treating the Revenue Division as a unit for the purpose of applying the rule of reservation is neither reasonable, nor has it any nexus with the object, viz., selection of best per sonnel for mantling these posts. He submits that either the village must be the unit, or the State as a whole; but there is no justification for treating the Revenue Division as a unit. Counsel relies upon the decision of the Supreme Court in
7. But the classification has to be reasonable and has to be justified on the basis of the nexus between the classification and the object to be achieved. A territorial classification may also be, reasonable classification provided it satisfies the above test. The Revenue Division has been treated as a unit for the obvious reason that the Revenue Divisional Officer is the appointing authority for all these posts within his division. Creation of units for the purpose of recruitment, promotion, and discharge is well known under the Service Rules. For example, under the Andhra Pradesh Ministerial Service Rules, a district is treated as a unit for the purpose of recruitment, Promotion discharge, and all other purposes: (vide Rule 9). Rule 20 of the said Rules further provides that the rule of special representation, provided by Rule 22 of the Andhra Pradesh Sale and Subordinate Service Rules, shall also be applied with reference to the unit referred to in Rule 9. Further Rule 10 (2) of the Village Offices Service Rules requires that a person for appointment to any of the village offices, shall have adequate knowledge of rural conditions in general, and of the village concerned in particular, and shall also have knowledge of revenue matters. Rural conditions are not the same throughout the State. They may even vary from one district to another. But it is safe to assume that in a given Revenue Division, rural conditions shall largely be the same. Moreover, applying the rule of reservation, taking the village as a unit, may not serve the very purpose of reservation, nor is it practicable to treat the State as one unit. For one reason, these rules do not apply in Telangana region of the State; further, the rural conditions may vary from the region, to region or even from district to district. A person from Srikakulam district cannot be expected to have adequate knowledge of the rural conditions obtaining in Chitoor district. Thus, having regard to the nature of the posts, the classification on the basis of Revenue Division cannot be said to be unreasonable. I am also of the opinion that the said classification is related to the object, viz., securing suitable and efficient personnel to man these village-offices. In my opinion, the decisions relied upon by the learned Counsel are of no assistance to him in this case. In P. Rajendran vs. State of Madras AP 780 257 the division of the State of Madras into several districts for the purpose of admission to Medical Colleges and alloting a certain number of seats to each district, was held not warranted by Art. 15(4) of the Constitution, and to be violative of Art. 14. It was held that object of the selection being securing of the best candidates, that object would be destroyed by admitting students district-wise, inasmuch as better qualified candidates from one district may be rejected, while less qualified candidates from other districts may be admitted. The same reasoning was applied in
8. The next contention of the learned Counsel is that reserving 50 percent of posts is excessive and violative of the guarantee contained in clause (1) of Art. 16. The observations in M. R. Balaji''s Case (supra) are relied upon in support of this proposition. While discussing the question what percentage of reservation can be said to be consistent with the object of clauses (10) and (4) in Art. 16, the Supreme Court observed:
"In this matter again we are reluctant to say definitely what would be a proper provision to make. Speaking generally, and in a broad way, a special provision should be less than 50 percent how much less than 50 percent, would depend upon the relevant circumstances in each case............ "
9. It is thus clear that the Supreme Court did not mean to lay down any hard and fast rule that 50 percent of the posts cannot be reserved and that, in every case, reservation should beless than 50 percent Learned Government Pleader has stated before me, after ascertaining from the Government, that the percentage of Scheduled-Castes, Sctaeduled-Tribes, and backward-Classes in the total population of the State is 13.27 percent, 5 percent, and 40 percent respectively. In other words, all these three categories put together constitute 58. 27 percent of the total population. If so, the reservation of 50 percent of the posts in their favour cannot be said to be unreasonable. In this context, another significant circumstance that has to be taken notice of, is that'' hithereto, the representation of these backward-classes in these posts has been almost negligible. Until 1961 these posts were treated as hereditary and, having regard to the historical factors, most of these posts were held by members belonging to what may be called forward- classes. Now the State wishes to provide for adequate representation while not doing violence to the guarantee contained in clause (1) of Art. 16. It may be noticed that, even in other Government services, 43 percent of the posts have been reserved in favour of these backward classes. The second contention of Mr. M. Chandra sekhara Rao, is, accordingly, rejected.
"It is then argued that the rule-making authority ought to have specified the inter se quota between the backward-classes, scheduled-castes and scheduled tribes. It is argued that in the absence of any such specification, it may happen that members of one category may take away all the reserved vacancies, thereby depriving the other categories altogether. I am, however, of the opinion that the petitioners, who did not belong to the categories for whom the reservation has been made, are not entitled to raise this question. Admittedly, all these three categories constitute ''''backward class of citizens" within the meaning of Art. 16(4). Though the specification of reservation in favour of each category may be desirable, it is not obligatory; nor can it be said that such non-specification renders the rule void.
11. Now, I will deal with the alternate contentions raised by the Counsel.
12. There can be little doubt, from a perusal of the sub-rule, that it is only prospective. It applies only in the case of vacancies which arise on or after the date of its coming into force, ie., 16-6-1977. It does not apply to vacancies which had arisen prior to the said date.
13. The language of the sub-rule also makes it clear that the list or roster, as the case may be to be prepared for the Revenue division for the purpose of application of the said rule, should be a consolidated one for all the posts in Class-I in Rule 3. It is not permissible for the authorities to prepare separate lists for each of the three categories in class-I for the purpose of applying the said rule. That would be contrary to the clear language employed in the sub- rule. In fact, it appears that while in some Revenue Divisions, a consolidate list is prepared, in other Divisions, category-wise lists are prepared. Mr. N. Subba Reddy, contended, on the basis of a clarification issued by the Government of Andhra Pradesh, that only category-wise list should be prepared. In Memorandum No. 2697-H. 1/77-5, dated 3-10-1978, the Government issued certain clarifications in pursuance to a letter of the Commissioner of Land Revenue, Point No. 5 therein relates to the preparation of the lists. I will set out the point raised, as well as the clarification thereon :-
"Point (5) : Whether both the vacancies of the village Karnam and the Village Munsif combined together have to be considered on one list for the purpose of determining the second vacancy, or whether two lists, i. e., one for village Munsif and the other for Village Karnam have to be maintained?
Clarification : Inasmuch as the posts of Village Karnam and Village Munsif are different and independent posts, the reservation has to be followed separately for each of them."
14. I am, however, unable to see any justification for this stand taken by Government; it is inconsistent with the clear language used in the Sub-rule. Mr. N. Subba Reddy argued that the qualifications for Village Munsif and Village Karnam are different and distinct and that, therefore, there must be two separate lists. I am unable to see any connection between the qualifications for these two posts, and the preparation of the lists for the purpose of the sub-rule. May be, they require different qualifications; but, they constitute one Class, and the rule says that every second vacancy in that class arising in a Revenue Division shall be reserved for the specified categories. Mr. Subba Reddy then suggested that, if a combined list is prepared, it may happen that both the posts in a village may go to the reserved categories. But, such an eventuality cannot be avoided even if there are two separate lists. I do not, therefore, think that there is any justification for preparing separate category-wise lists.
15. So far as WP. No. 3S25/7S is concerned, Mr. M. Chandrasekhara Rao con ends that, if a combined list is prepared for the Narasaraopet Revenue Division, the vacancy in question will become an open vacancy. For appreciating this contention, it is necessary to refer to the following statement contained in paragraph 4 of the counter-affidavit. The counter affidavit states that between 23-5-1977, and 25-11-1977, the following vacancies arose in that Division :-
16. Mr. Chandrasekhara Rao rightly points out that the first vacancy in the post of village Karnam cannot be taken into consideration since it had arisen before the coming into force of the reservation rule. The reservation rule was published in the Gazette on 16-6-1977. Therefore, the aforesaid vacancy has to be excluded. The said vacancy appears to have been taken into consideration by the Revenue Divisional Officer on the assumption that the reservation rule has come into effect on 23-5-1977 itself; but, that is opt correct. The rule was made on 23-5-1977, but it does not come into operation unless published in the Gazette; (Vide Section 5 of the Andhra Pradesh General Clauses Act). If the said vacancy is excluded and then a combined list is prepared in respect of the above vacancies chronologically, then the vacancy in question, viz., the vacancy of village Munsif in respect of Chimalamarri village, would be an open vacancy, and not a reserved one. The respondents shall therefore proceed further and make a selection, treating it as a general vacancy.
17. I also find sufficient force in the contention of the learned Counsel for the petitioners that the authorities having issued a notification calling for applications from all the members of the public, cannot, at the time of consideration/selection treat it as a reserved vacancy. The proper course for the authorities in such a case would be to withdraw the earlier notification and issue a fresh notification indicating that it is a reserved vacancy. They must first decide whether a particular vacancy, which is being notified, is an open vacancy or a reserved one, and then issue a notification accordingly,
18. So far as W.P. No. 4030/77 is concerned, the vacancy had arisen on the death of the permanent incumbent in May 1976. If so-it is of course a matter for the appropriate authorities to verify-the rule of reservation has no application to the said vacancy.
19. Similarly, it is stated that in Writ Petition Nos. 4557, 4574, and 5117 of 1978, the vacancies had arisen earlier. If that is so-and it is a matter for verification by the appropriate authorities-the rule of reservation can have no application.
20. So far as W.P. No. 4563/78 is concerned, the vacancy, admittedly, arose after the rule of reservation came into force. Of course, a notification was first issued on 17-9-1977 inviting applications from all but subsequently, this notification was revoked and a second notification was issued on 17-12-1977 treating it as a reserved one. This is a proper procedure; but whether the vacancy in question should be treated as a reserved one, or should be treated as an open one, is a matter which the authorities shall determine having regard to the principles indicated herein, and then take appropriate action accordingly.
21. Mr. E. Manohar raised a further contention that in list prepared for the Revenue Division, the vacancies arising from dismissal of the incumbent should not be shown, where the orders of dismissal are the subject-matter of appeal or revision, as the case may be. He submits that in case the appeal or revision is ultimately allowed and the incumbent is reinstated, the vacancy would disappear. It may be so. In fact, Rule 8 says that in such a case, the person appointed in the vacancy, though appointed regularly, shall be deemed to be only a temporary incumbent. But, I am not able to see any valid reason why a vacancy arising on account of the dismissal of a incumbent should be directed to be excluded from the list. The contingency of reinstatement of the dismissed incumbent is hot a sufficient ground for not treating the vacancy as a ''vacancy''. The appeals and revisions may take any length of time. The vacancy cannot be kept apart awaiting the outcome of the disciplinary proceedings. I do not, therefore, see any justification for directing that such vacancies, ought to be excluded.
22. In W.P. No. 2707/78, therefore, the Revenue Divisional Officer shall prepare a consolidated list in accordance with the principles contained herein and take appropriate action accordingly.
23. In W.P. No. 5134/78 and W.P. 5205/78 also the Revenue Divisional Officer shall prepare a combined roster in the light of this judgment and take appropriate action accordingly.
24. Before patting with this case, I must observe that it would be desirable if the Government specifies the quota of reservation as between the backward classes, scheduled castes and scheduled-tribes. These three categories are not situated alike, from the point of view of backwardness. Hence, ft is desirable that the quota of each of the said three categories is specified.
25. The rule does not provide what should happen in case a suitable candidate is not available for a reserved vacancy: whether the vacancy should lapse and be available for open competition, or whether it should be carried forward, and if so, to what extent? It would obviate unnecessary complications if this aspect too is clarified by appropriately amending the Rule. For the aforesaid reasons, the writ petitions are allowed to the extent indicated hereinbefore. There shall, however, be no order as to costs, in the circumstances of the case.
