ORDER
1. As the subject matter of these two writ petitions being the same, they can be disposed off by a common order. These two writ petitions are filed for issuance of a writ of ceriiomri calling for the records relating to selection and appointment of drivers in APSRTC, East Godavari Region in February, 1997 and quash the same as illegal as the selections are vitiated by mala fides and undue favour was conferred on the candidates belonging to the caste of the Chairman of the selection Committee. Such an action being violative of Article 14 of the Constitution of India, the same is liable to be struck down by this Court.
2. The factual matrix of these two cases are that the Executive Director, APSRTC, Vizianagaram zone sought permission of the Vice-Chairman & Managing Director, to prepare a panel of 200 drivers in Grade-Ill for East Godavari region in his letter dated 29-7-1996. While giving permission to recruit 89 drivers, the VC & MD seemed to have constituted a Selection Committee consisting of three officers from Vizianagaram zone and the 5th respondent was nominated as Chairman of the Selection Committee- Subsequently, the Personnel Officer, Rajahmundry Division sent a requisition to the District Employment Officer, Kakinada to sponsor candidates for recruitment of 89 drivers Grade-111 in the existing vacancies in his letter dated 13-8-1996. In the said notification it was also made clear that reservations not only in favour of Constitutionally permissible classes but also Ex-Servicemen and physically handicapped persons will also be applied. Again 30 per cent posts were reserved for women in all categories. The employment officer seemed to have sponsored 1606 candidates for filling up the vacancies. Interviews have taken place between October, 1996 to February, 1997. As per the averments made in the affidavit filed in support of the writ petition, out of the candidates sponsored by the employment exchange while 400 candidates belongs to OC Category, 900 candidates belong to BC category and the rest of them to SC and ST categories. In the Preliminary test held in the month of October/November, 1996 about 125 candidates from OC category and 195 candidates from BC category and some others were selected. Again out of 195 BC candidates 128 candidates belong to BC ‘B’ group. After preliminary test was over candidates were sent interview letters for driving test clearly mentioning the social status of the candidate i.e., by mentioning his caste name in it. Tlte driving test carries 100 marks. While 50 marks were prescribed as qualifying marks for OCs and BCs and for SCs and STs the qualifying marks were fixed at 40. After final driving test was over, 165 candidates seemed to have been empanelled for appointment out of whom only 28 BC candidates were shown as selected, and out of 78 OC candidates were selected, 60 candidates belong to ‘Kaapu’ community, i.e., the community of the Chairman of the Selection Committee.
3. It is his case that after preliminary test, the BC candidates selected out numbered the OC candidates, but in the final selection only 28 candidates belonging to BC category were selected, while 78 candidates from among OC category out of whom 60 candidates belong to ‘Kaapu’ community were selected.
4. Further, it is their case that the 4th respondent being the Chairman of the Selection Committee prevailed over the other members of the Selection Committee and succeeded in getting majority of his cast persons selected, i.e., 60 out of 78 candidates. From this it is clear that 80 per cent of the selections have gone in favour of the community of the Chairman in the candidates selected under OC category.
5. Nextly, the petitioners contended that though the percentage of reservations in favour of Constitutionally pennissable classes are over and above the candidates who are selected in the open competition, by indicating the community of the candidates in the interview letters, the 4th respondent succeeded in seeing that no BC candidate was selected in the open competition. In other words, by indicating the caste of the candidate in the interview letter, the minds of the members of the Selection Committee were prejudiced and limited their selections only to the posts that were ear-marked for them. As the selections are based not on merit, but on extraneous considerations, the entire selection list deserves to be quashed by this Court.
6. By order dated 28-4-1997 in Writ Petition No. 8102 of 1997, I directed the Counsel for the respondents to file a counter specifically adverting to the allegations made by the petitioners. By another order dated 30-4-1997, I refused to grant any interim direction as the appointment orders were already given. But, I directed the petitioners to implcad the appointed candidates as party respondents to these proceedings, and posted the writ petition for orders after summer vacation. On 9-6-1997, my brother Justice S.S. Hussaini, directed the office to post the writ petition before me for orders. In the mean time, another batch of candidates who appeared for driving test filed Writ Petition No. 15908 of 1997. By order dated 21-7-1997 Justice D.H. Nasir, as he then was directed the office to post the writ petition along with the 1st writ petition before me after obtaining the orders of the Hon’blc the Chief Justice. Both the writ petitions were listed before me on 29-7-1997. On that day, while the Counsel for the respondent sought for time to file counter, the Counsel for the petitioners brought to my notice that the 4th respondent is taking steps to fill up about 200 posts of drivers from among the candidates selected in the interviews conducted by the Selection Committee. As the very procedure followed by the Selection Committee is under enquiry, I directed the respondents not to fill up the vacancies till the disposal of the writ petitions, and directed the office to post the writ petitions on 31-7-1997. But, the writ petitions appeared in the list only on 8-8-1997, on that day the Counsel for the respondents brought to my notice that the Managing Director, ordered for enquiry into these appointments by Vigilance Officer and requested for some time to place the findings of the Vigilance Officer before the Court. Accepting the request of the Counsel for the respondents, I adjourned the matter to 8th September. 1997. Thereafter the matter underwent several adjournments and ultimately, the report of the Vigilance Officer was placed before the Court. The Vigilance Officer in his report stated that out of 381 qualified candidates interviewed between 29-10-1996 and 4-11-1996, the Selection Committee selected 89 candidates and their break up was given as follows:
“OC
50
(Kapu-26 Other Castes-24)
SC
14
ST(-)
06
(Vacant)
BC-A
07
BC-B
10
BC-C
01
BC-D
07
Total
89″
7. From the report it came to light that in the month of February, 1997, the 4th respondent sought for the permission of the VC & MD, to appoint 78 more candidates from the candidates that were interviewed from out of the list of candidates sponsored by the employment exchange, pursuant to the requisition of the Personnel Officer dated 18-8-1996. It is useful to extract the findings of the Vigilance Officer:
“Some malpractices have taken place while selecting the 78 candidates as driver Gr.III in addition to 89 candidates in EG Region, such as replacement of printed Driving Test Reports with hand written DTRs at a later stage and alterations of marks have also taken place while preparing the IInd list
The IInd list of 78 candidates, were selected from the list of 1606 candidates who were already sponsored by the District Employment Officer, Kakinada intended for recruiting 89 drivers Gr.III in EG Region without calling fresh list of candidates from the District Employment Exchange, Kakinada.
The caste-wise break up is given hereunder;
OC
44
(Kapu-23 other Castes-21)
SC
13
ST
05
(-) Vacant
BC-A
06
BC-B
08
BC-C
01
BC-D
06
Total
78
Break up of other castes-21 : (Kshatriya-6 + A. Kshatriya-1 + Reddy-1 + Telaga-2 + Rajulu-1 + Muslim-1 + K. Vehma-1 + W. Balija-1 + Yadava-1 + Addi Andhra-1 + Mala-1 + S. Balija-3 + Gowra-1).
The above details shows that the selection Committee has followed rule of reservation.
Before extending the panel, ED(A) has sought clarification/permission from the Director of Employment and Training, Hyderabad, to select/recruit 100 more candidates from the list already sponsored by the District Employment Exchange, in addition to 89 candidates who were already selected in the recruitment in tlie EG Region, vide Lr. No.R3/684(39)/96-HRD, dated 17-2-1997.
In response to the above letter the Director of Employment & Training Hyderabad has given reply stating that normally as per rules as many vacancies should be filled as many have been notified to the Employment Exchange, as per the provisions of the EE(CNV) Act, 1959 and he further stated that if the number selected is marginally a little more than the number notified, then the formal notification can be sent to the extent of those vacancies and legal formality complied with. Finally the Director Employment & Training, Hyderabad has given permission to the extent of the panel from the existing list of candidates sponsored by the District Employment Officer, Kakinada, duly giving some guidelines and specifically he requested to restrict such reserve panels in future to not more than 1/4 of the initially foreseen recruitment, since sponsoring of candidates is limited to ratio and due opportunity has to be provided to the eligible.
As seen from the selection lists of 1st and 2nd, there are 49 candidates (26+23) belong to Kapu community among the 94 OC candidates in total. It works out to 52% candidates selected in OC category are belonging to Kapu community.”
8. The Vigilance Officer summarised his findings that though few candidates belonging to the reserved category were selected in the open competition, the candidates belonging to the caste of the Chairman of the Selection Committee accounted for 52% of the posts car-marked for the candidates belonging to OC.
9. It is now well settled that the appointing authority is not empowered to make appointments over and above the vacancies notified either to the Employment Exchange or otherwise. Any attempt in that direction, i.e., in appointing candidates over and above the vacancies notified is per se illegal. Infact, this position was clearly brought out by the Director of Employment and Training to the 4th respondent. While bringing the legal position, the Director, seemed to have given permission to fill up the vacancies to the extent of the candidates empanelled for appointment. But, hi the light of the findings of the Vigilance Officer, that not only the printed Driving Test Reports were replaced but also the marks obtained by the candidates were also altered in preparing the 2nd list, the question of appointing the candidates over and above the notified vacancies i.e., 89, is neither permissible in law nor can be upheld in the light of the malpractices that came to the notice of the Court. Accordingly, the action of the 4th respondent in trying to appoint 78 candidates is declared as illegal and consequently he cannot proceed with the appointment of these candidates.
10. During the course of arguments, having seen that the procedure laid down for recruitment of drivers is neither transparent nor a full-fledged one, by order dated 17-9-1998, I directed the respondent-Corporation to draw a scheme specifying norms for selection of drivers by consulting a committee with the following:
(1) A senior official from the administration side.
(2) A senior official from Mechanical branch.
(3) A senior official nominated by the Commissioner of Transport.
11. After this order though initially the respondents tried to justify the scheme that was in vogue, at the instance of the Managing Director, the senior officials of the Corporation seemed to have reviewed the procedure for selection of drivers and submitted the revised proposal to the Court.
12. I need not go into the entire scheme, as the same comprises of various aspects of selection. Further only certain modifications were made to the existing scheme on the basis of the views expressed by this Court.
13. For the first time the Corporation introduced ratio in sending interview letters in the ratio of 1:4 i.e., if one driver has to be selected out of the list of candidates sponsored by the Employment Exchange, 4 candidates as per their seniority will be called for the interview, if sufficient number of candidates are not available from the reserved categories, then they may go further down and send interview letters in the manner stated above. Now, as per the new scheme, the Corporation decided to give weightage of marks to the drivers who were selected in the driving test for the educational qualifications, i.e., a 7th class candidate will be getting 3 marks and a SSC candidate will be getting 5 marks as weightage in addition to the marks secured by the candidate in the driving test. The Corporation also agreed to give weightage to the experience gained by the candidate in driving heavy goods vehicles and HPMG vehicles i.e., while one must have a minimum three years experience in driving the above vehicles, the candidates with greater experience will be given more weightage marks. Now, the Corporation agreed in principle to award minus marks for the traffic offences committed by these candidates prior to the selection and they seemed to have requested the Government to re-organise and develop a foolproof system in not only issuing driving licences but also recording the punishments awarded to the individual. As these suggestions will go a long way in avoiding rash and negligent driving and causing accidents, the Commissioner of Transport is directed to computerise the system of issuing driving licences with details. That apart, the Commissioner has to give necessary instructions not to issue duplicate licences on mere asking without proper verification and enquiry into the matter.
14. The Selection Committee opined that the social status of the candidates belonging to SC and ST categories have to be mentioned as the qualifying marks prescribed for them are only 40 whereas for others they are fixed at 50.
15. Here the Court would like to make it very clear that the percentage of reservations in favour of Constitutionally permissible classes are over and above the candidates that were selected in open competition. This being a purely ministerial act within the realm of the administration of office these particulars need not be furnished to the members of the Selection Committee. The officer in-charge can take the necessary precautions in sending interview letters to see that required number of candidates from each reserved category are called for interview. But, by no stretch of imagination, the social status of the candidate should be made known to the members of the Selection Committee.
16. Finally, the Court would like to make the following suggestions to make the procedure of recruitment a full-fledged one and more transparent, which is beneficial to the organisation as well as the candidates who are appearing for the test;
(1) Instead of constituting a selection committee blindly, it is better if the VC & MD constitutes the Selection Committee in a broad manner, i.e., the members of the Selection Committee should be drawn from different social groups and to meet this requirement, the Selection Committee should be with 5 members. They should necessarily be the officers outside the zone for which selections are being made.
(2) The results of the candidates interviewed by the Selection Committee should be published under the signatures of all the members of the Selection Committee on the same day evening in the notice board. Such an action will not only establish credibility on the process of selection but also the scope of tampering with the Driving Test Reports or altering the marks secured by the candidates as seen in this case will come to an end.
17. The Court is in agreement with the rest of the suggestions made by the respondent-Corporation in the new scheme to make the procedure of recruitment a foolproof one, with transparency.
18. Coming to the 1st selection of 89 candidates as they were given appointments in the year 1996 and they have put in nearly 2 years of service, though 1 find some truth in the allegations made by the petitioners, I am not inclined to set aside their appointments and the appointments of 89 candidates that have taken place in the months of November/ December, 1996 pursuant to the requisition sent by the Personnel Officer to the Employment Officer on 13-8-1996 are upheld. But, the attempt of the 4th respondent in trying to appoint 78 more candidates from out of the list of candidates sponsored by the Employment Exchange is found to be mala fide one and the question of appointing those candidates will not arise. If any of them have been given appointment orders inspite of the orders of this Court dated 29-7-1997, their appointments are set aside and it is open to the authorities concerned to initiate proposals to fill up these posts in accordance with law and the new guidelines proposed by the Corporation with the modifications suggested by this Court supra.
19. Accordingly, both the writ petitions are allowed in part to the extent indicated. But, in the circumstances there will be no order as to costs.