V.V.S. Rao, J
1. The questions of fact and law that arise for consideration in these matters are inter-related, and therefore, it is necessary for us to deal them jointly and dispose of by a common judgment.
2. The validity or otherwise of the Diploma in Public Health and Sanitation Technology, granted by the Institute of Public Health and Hygiene, New Delhi (for brevity ‘the New Delhi Institute’), is in issue in WP No. 3102 of 1996. In WP No. 24701 of 1999 the legality or otherwise of the order dated 15-11-1999, passed by the A.P. Administrative Tribunal (for brevity ‘the Tribunal’) in MA No.2914 of 1999 in OA No.6567 of 1999, is questioned. The two different litigations converge before us for decision under Article, 226 of the Constitution of India, in the circumstances, as noticed below:
Multi-purpose Health Assistant (Male and Female) (for brevity ‘MHA’) is a distinct category of post in A.P. Public Health Subordinate Services. The method of appointment is governed by the rules, issued by the Government of Andhra Pradesh in exercise of power conferred by proviso to Article 309 of the Constitution of India, in G.O. Ms. No.273, Health, Medical and Family Welfare Department, dated 24-4-1989 (for brevity ‘the Special Rules’). As per Rule 4, the method of appointment to the post of MHA is by direct recruitment, and the portion of the said rules that is relevant for our purpose reads thus:
“Rule 4. Qualifications: No person shall be eligible for appointment to the post mentioned in column (1) unless he/ she possesses the qualification prescribed in the corresponding entry in column (3) :
Name of the post
Method of appointment
Qualification
(1)
(2)
(3)
Multipurpose Health Assistant (Male and Female)
By direct recruitment
(i)
Must have pass intermediate
or any other equivalent qualification;
(ii)
A Sanitary Inspector
Training Course Certificate awarded by the Chairman of the Board of Examiners
constituted by State Government; or
(iii)
Must possess a Certificate
of Multi-purpose Health Workers Training Course conducted by the State Government;
(iv)
Physical fitness
for camp-life.
3. Sanitary Inspector Training Course Certificate (SITC) was awarded by the Chairman of the Board of Examiners constituted by the State Government to those who underwent training in Government Hospitals/Institutions. Likewise, persons who pass the examination of Multi-purpose Health Workers Training Course, conducted by the State Government, are given the said diploma.
4. The New Delhi Institute is an organisation allegedly engaged in imparting education in Public Health and Hygiene. It conducts various diploma courses in Hospital Administration and Management Technology, Medical Lab Technology, X-ray and ECG Technology, Public Health and Sanitation Technology etc. It is alleged that the training by the New Delhi Institute in the above said courses, are approved by the Ministry of Defence, Government of India and other State Governments. The New Delhi Institute has branches spread all over India, and one such branch is situated at Hyderabad. The Diploma in Public Health and Sanitation Technology, awarded by the New Delhi Institute was not recognised by the Government of Andhra Pradesh for the purpose of the Special Rules.
5. An original application, being OA No.7285 of 1993 was filed before the
Tribunal praying for a direction to the Government of Andhra Pradesh to recognise the certificate issued by the New Delhi Institute for the Diploma in Multi-purpose Health Worker (Male) on part with Bombay and Karnataka certificates by extending the benefit of GO No.500, dated 13-10-1993, whereby such certificate was recognised. By order dated 31-12-1993, the Tribunal disposed of the said OA directing the Government of Andhra Pradesh to consider the request of the applicants as per the rules. By that time, it appears that a large number of students, belonging to Andhra Pradesh studied/were studying Diploma course conducted by New Delhi Institute. The Government, therefore, in exercise of power conferred on it by proviso to Article 309 of the Constitution of India, issued G.O. Ms. No.35, dated 30-1-1995, amending the Special Rules governing MHA.
6. The Director of Medical and Health issued a circular dated 13-10-1995, informing all the District Officer to implement G.O. Ms. No.35, dated 30-1-1995. It is submitted before us that a large number of persons, who studied in private institutions obtained certificates from New Delhi Institute. Be that as it may, the Government issued an executive order in G.O. Ms. No.64, dated 3-2-1996, cancelling G.O. Ms. No.500, dated 13-10-1993 and G.O. Ms. No.35, dated 30-1-1995. It may be reiterated that by the former GO, the Bombay and Kamataka certificates were recognised, and by the latter GO, the certificates issued by the New Delhi Institute were recognised, as required qualifications for appointment to the post of MHA. Pursuant thereto, it appears that the Government issued G.O. Ms. No.406, dated 4-10-1997, withdrawing the recognition granted to the College of Medical Technology, Ongole, to conduct the course of Diploma in Public Health and Sanitation Technology. The said GO was challenged before this Court in WP No.26622 of 1997.
7. The New Delhi Institute Hyderabad branch filed WP No. 3102 of 1996 inter alia praying for a declaration that G.O. Ms. No.64, dated 3-2-1996 is illegal, arbitrary, and that the orders issued in G.O. Ms. No.35, dated 30-1-1995 cannot be cancelled. While admitting the writ petition, this Court on 22-2-1996 passed interim orders in WPMP No.3736 of 1996 suspending G.O. Ms. No.64, dated 3-2-1996. Presumably, by virtue of the said interim orders, the New Delhi Institute conducted the courses and issued certificates to many persons. G.O. Ms. No.64, dated 3-2-1996 is impugned on the grounds that the same has been passed without application of mind, that cancelling a statutory amendment issued in G.O. Ms. No.35, dated 30-1-1995 by an executive order is legally unsustainable, and that the impugned order violates the principles of natural justice.
8. The Government of Andhra Pradesh-respondent No.1 in WP No. 3102 of 1996 filed counter-affidavit disputing the legal contentions as untenable. It is stated that the petitioner-New Delhi Institute is issuing certificates of Diploma without giving proper field training and without maintaining academic year, by collecting huge amounts from the students, that no notice is required to be given, as recognition was earlier granted to the certificates awarded by the New Delhi Institute, and not to the petitioner-Institute, which is located at Hyderabad, and that the Government have taken a policy decision not to recognise any private institution in the field of public health education as there are adequate number of trained unemployed candidates.
9. WP No.24701 of 1999 and CC No.625 of 2000 came to be filed in connection with the recruitment taken up by the District Selection Committee, chaired by the District Collector, for recruiting 55 posts of male MHAs in Mahabubnagar District. The Director of Medical Education issued a
notification dated 8-6-1999 calling for applications from eligible candidates for filling up the vacancies of MHAs (M). A written test was conducted on 4-7-1999. It appears that some of the students who studied in the College of Medical Technology, Ongole, approached the Tribunal by filing OA and the Tribunal allowed them to participate in the selection process. Therefore, the Government of Andhra Pradesh in their Memo No.20163/J2/99-5, dated 29-10-1999 directed that the said candidates should not be given appointment orders even if they come within the zone of selection pending disposal of the Court cases. Be it noted that by the time the above memo was issued, WP No.3102 of 1996 and WP No.26622 of 1997 questioning the derecognition of the course, conducted by the New Delhi Institute were pending before this Court.
10. The District Selection Committee published a select list consisting the names of 40 selectees. At that stage respondents 4 to 6 in WP No.24701 of 1999 filed OA No.6567 of 1999 challenging the Government Memo dated 29-10-1999. It came up before the Tribunal on 8-11-1999. While admitting OA., the Tribunal by order dated 8-11-1999 directed the respondents therein to consider the case of the applicants for appointment to the posts of MHAs on the basis of the Diploma certificates produced by them without reference to the Government Memo No,20163/J2/99-5, dated 29-10-1999 subject however to the final result of the OA. In the meanwhile on 11-11-1999, the competent authority issued appointment orders to 30 candidates. The petitioners in WP No.24701 of 1999 were not called for counselling in view of the interim orders passed by the Tribunal on 8-11-1999. Again a miscellaneous application in MA No.2914 of 1999 in OA No.6757 of 1999 was moved before the Tribunal. By order dated 15-11-1999, the Tribunal directed the respondents to consider the cases of the
applicants for appointment as MHAs on the basis of their certificates, if they come up for such appointments on merit basis.
11. Feeling aggrieved by the order of the Tribunal dated 15-11-1999 passed in MA No.2914 of 1999 in OA No.6757 of 1999, ten candidates whose names were included in the selection list filed WP No.24701 of 1999 with leave of the Court. This Court by order dated 6-12-1999 in WPMP No. 31106 of 1999 suspended the impugned order of the Tribunal, and by another order of the same date, passed in WPMP No. 31107 of 1999, this Court directed respondent Nos.2 and 3 to conduct counselling for the petitioners and appoint them at suitable places if their names appear in the selection list. Respondent Nos.4 to 6 moved this Court by filing WVMP No.3463 of 1999 seeking vacation of the interim order dated 6-12-1999 passed by this Court in WPMP No.31107 of 1999. In the said application by order dated 7-12-1999, this Court in modified order dated 6-12-1999 and directed respondent Nos. 2 and 3 to conduct the counselling and appoint the petitioners/other eligible candidates if their names find place in the final selection list. Respondent Nos. 2 and 3, however, reviewed the selection list dated 6-11-1999 and published a new list of selectees on 28-3-2000. As per this second select list, appointment orders were issued to respondent Nos.4 to 6. Therefore, on 17-4-2000, the petitioners moved this Court by filing CC No.625 of 2000 alleging that respondents willfully and deliberately disobeyed the orders of this Court dated 7-12-1999. When the CC came up for hearing on 2-8-2000, this Court stayed the second list prepared on 28-3-2000 observing that if any candidates are already appointed, the same will not confer any right on them. It is now submitted by the learned Counsel for the respective parties that the Government of Andhra Pradesh issued a memo on 22-2-2001, directing respondent No.3 to comply with
the orders of this Court passed in WPMP No. 31107 of 1999 in WP No.24701 of 1999, and accordingly by order dated 22-3-2001, the writ petitioners were appointed.
12. Before noticing the submissions made by the learned Counsel for the petitioner in WP No. 3102 of 1996 and the learned Counsel for the petitioners in WP No. 24107 of 1999 and CC No.625 of 2000, it is necessary to point out that WP No.3102 of 1996 was filed questioning an administrative order which purports to cancel the amendments issued to the Special Rules in exercise of power conferred by the proviso to Article, 309 of the Constitution of India, and WP No.24107 of 1999 was filed against an interlocutory order passed by the Tribunal directing the competent authority to appoint respondent Nos. 4 to 6 as MHAs. OA No.6567 of 1999 is still pending before the Tribunal. Hence, the limited question that is required to be considered in WP No.24107 of 1999 is whether the interlocutory order passed by the Tribunal on 15-11-1999 suffers from any error. For that purpose, we have to examine only whether there is any prima facie case. The merits of the matter need not be gone into and they have to be left to the Tribunal for decision on merits.
13. The learned Counsel for the petitioner in WP No.3102 of 1996 submits that the impugned GO cancelling the amendment made to the Special Rules is unsustainable. He submits that the impugned GO being an executive order, was issued without application of mind, purporting to cancel the amendment introduced in Rule 4 of the Special Rules. He further submits that no notice was issued to the petitioner-Institute before withdrawing the recognition granted to the diploma course offered by the Institute.
14. As directed, the learned Government Pleader has produced the relevant
Government file before us. The file reveals that a lot of complaints were made by the public against the petitioner-Institute to the effect that they are issuing certificates by collecting huge amounts even though the candidates are not properly qualified and even though they have not studied in the Institute. It is stated by the learned Government Pleader that the Government has not recognised the petitioner-Institute as one to offer the course in question. The Government, only recognised the College of Medical Technology, Ongole, after inspection by an Expert Committee as to the availability of the infrastructure at the said Institute. Having considered all these facts, the Government issued G.O. Ms. No.64, cancelling G.O. Ms. No.35, dated 30-1-1995.
15. The reasons for amending the Special Rules conferring recognition to the Diploma certificate issued by the Institute of Public Health New Delhi are stated in G.O. Ms. No,35, dated 30-1-1995, and the relevant portion reads thus:
“Sri G. Choudappa and others of Ananthapur have filed OS No.7285 of 1993 in the Andhra Pradesh Administrative Tribunal stating that the Diploma awarded to them by the Institute of Public Health and Hygience, New Delhi is of more standard than the diploma granted by State Government or by the Institutes run by the State Government. They have further sated that the certificates issued by the Institute of Public Health and Hygiene, New Delhi are not in any way inferior to that of the certificates of ‘All India Institute of Local Self Government, Bombay as the syllabus is one and the same and that it is also recognised by the Government of India and various other State Governments. They have finally requested the Andhra Pradesh Administrative Tribunal to direct the
respondents to recognise the Multipurpose Heath Workers (Male) certificates issued by the Institute of Public Health and Hygience, New Delhi on par with Bombay and Karnataka certificates by extending the benefit of G.O.Ms.No.500, HM and FW, dated 13-10-1993 to them.
2. The Andhra Pradesh Administrative Tribunal in its orders dated 31-12-1993 have directed the respondents to consider
the request of the applicants as per rules.
3. The Director of Health in his letter 4th read above, has requested the Government to take action with regard to the recognition of the Sanitary Inspector Training Course, Diploma Course, conducted by the Institute of Public Health and Hygiene, New Delhi.
4. Government after examining the whole matter by keeping in view the interests of the students of Andhra Pradesh who are studying the said course in large numbers have decided to recognise the Diploma in Public Health and Sanitation Technology being awarded by the Institute of Public Health and Hygiene, New Delhi for the purpose of appointment to the post of Multipurpose Health Assistant in Andhra Pradesh.
5. Accordingly, the following amendment is issued to the rules governing the post of Multi-purpose Health Assistant (Male and Female) issued in G.O.Ms.No.273, Health, dated 24-4-1989.
AMENDMENT
Under Rule 4, i.e., qualifications of the said rules, the following shall be added against the category of Multi-purpose Health Assistant (Male and Female) at the end of column (ii) of the table.
‘or’
“Diploma Certificate awarded by the Institute of Public Health and Hygiene, New Delhi”.
16. However, the impugned order in G.O. Ms. No.64 merely says that G.O. Ms. No.35, dated 30-1-1995 is cancelled after duly reviewing the position and keeping in view the number of persons trained/being trained (male and female) in MHAs in the Government Centers in AP and waiting for employment. The order in G.O. Ms. No.35 is by way of amendment to the statutory rules, presumably in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. It is well settled that a statutory rule cannot be modified or amended by executive instructions. If any authority is required, we may refer to Senior Superintendent of Post Office v. Izhar Hussain, , wherein it was held:
“…..A statutory rule cannot be
modified or amended by executive instructions, A valid rule having some lacuna or gap can be supplemented by the executive instructions, but a statutory rule which is constitutionally invalid cannot be validated with the support of executive instructions. The instructions can only supplement and not supplant the rule.”
17. Therefore, the impugned GO, being an executive order, is wholly unsustainable. Neither any attempt has been made in the counter-affidavit nor by the learned Government Pleader before us to deny the legal position. Therefore, we must hold the impugned GO is unconstitutional.
18. Further the reason for cancelling the amendment to our mind is extraneous in the process of decision making. The diploma certificate awarded by the petitioner-Institute was recognised on the ground that those certificates are in no way inferior to the certificates granted by All India Institute of
Local Self Government, Bombay, as the syllabus is one and the same. In matters of equation of academic degrees and diplomas, one of the relevant consideration is the nature and structure of the course, besides the standards. Ordinarily, the mere fact that there are large number of unemployed diploma holders, is not a ground for derecognising the diploma granted by the petitioner-Institute. For these reasons, we are of the considered opinion that the impugned GO is unsustainable though it is always open for the Government, which is competent to amend the Special Rules, and take appropriate action in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. Needless to point out that the statutory rules can always be questioned on the ground of unreasonableness (See Indian Express News Papers v. Union of India, ).
19. In WP No.24701 of 1999 and CC No.625 of 2000, the learned Counsel for the petitioners submits that case of respondent Nos.4 to 6 for appointment was not considered on the ground that they are not eligible to apply for the post as they are possessing certificates obtained from unrecognised institutions. He also submits that even in the notification calling for applications for the post of MHAs, it was made clear that candidates who possess certificates issued by recognised institutions alone are eligible. The applications of the petitioners were received by the competent authority pursuant to the orders of the Tribunal dated 22-6-1999 passed in OA No.3189 of 1999 and Batch, and they were permitted to write the examination. At that stage, the Government rightly issued memo dated 29-10-1999 directing the competent authority not to give appointment orders even if such candidates come within the zone of selection. It is submitted that the Government was justified in passing such an order having regard to the pendency of the WP No.3102 of 1996, and other similar
writ petitions before this Court. He further submits that by issuing memo dated 29-10-1999, the Government had not for all times disqualified respondent Nos.4 to 6, but only postponed the final decision as to their selection, having regard to pending Court cases as to the recognition or otherwise of the diploma certificate granted by the New Delhi Institute. These allegations were refuted by the learned Counsel for the respondent Nos. 4 to 6 as well as the impleaded petitioners. He submits that those candidates who are possessing certificates obtained from New Delhi Institute scored more marks but they were not included in the provisional selection list dated
6-11-1999 initially because of the memo dated 29-10-1999 issued by the Government. It is submitted that in those circumstances the Director of Medical and Health was justified in reviewing the selection list having regard to the orders of this Court on
7-12-1999.
20. Respondent Nos.4 to 6 have challenged the Memo No.20163/J2/99-5, dated 29-10-1999 issued by the Government of Andhra Pradesh in Health, Medical and Family Welfare Department. The said memo relevant for the purpose of this case reads thus:
“3. In respect of the candidates who were allowed to participate in the selection process as per APAT interim orders and possessing certificates issued by Institutes not recognised by Government such as the College of Medical Technology, Ongole, Institute of Public Health and Hygiene, New Delhi, All India Institute of Local Self Government, Bombay Karnataka or any Institute as per similar directions of Court they should not be given appointment orders, even if they come within the zone of selection pending disposal of the Court cases. On receipt of final judgments in their cases, further orders will be issued.”
21. The above memo shows that the candidates who possess certificates issued by the College of Medical Technology, Ongole, Institute of Public Health and Hygiene, New Delhi, and All India Institute of Local Self Government, Bombay and Karnataka or any Institute may be allowed to participate in the selection process as per the interim orders of the Tribunal, and if such candidates within the zone of selection they should not be given appointment orders, and that the Government would issue further orders on receipt of final judgments in the cases of those candidates who have diploma certificates from the institutes referred to therein. In our opinion, this only means that the Government intended to decide the cases of such of those candidates who have certificates from the Institute of Public Health, New Delhi, after final judgment is passed in the cases pending before this Court. The order passed is a reasonable order, as otherwise, if all the selected candidates possess certificates issued by the Bombay, New Delhi or Karnataka Institute, and later their certificates stand derecognised by virtue of the orders of the Government or the orders of the Courts, there will be lot of public inconvenience and complications. If formal appointment of those candidates is postponed pending final judgments as to the validity of the derecognition, it would also be open to the Government to pass appropriate and necessary orders after the judgments are passed. When the Tribunal passed orders directing respondent Nos.2 and 3 to consider the cases of respondent Nos.4 to 6 for appointment to the posts of MHAs, the Tribunal lost sight of the purport of the memo dated 29-10-1999, though the Tribunal was aware of the pendency of the writ petitions being WP No. 3102 of 1996 and WP No.21830 of 1999, filed by the Ongole Institute. This is clear from the impugned order of the Tribunal which reads as under:
“The aforementioned orders dated 29-10-1999 are clearly contrary to the
orders issued by the High Court in WP No.3102 of 1996 and WP No.21830 of 1999, particularly when the orders derecognising the certificates issued by the various institutes, have been suspended by the High Court, it is not open” to the respondents to issue instructions as in Memo No.20163/J2/ 99-5, dated 29-10-1999.”
22. It is well settled that while passing interim orders, this Court as well as the Tribunal should exercise discretion with considerable circumspection. Apart from looking at prima facie case and balance of convenience, in matters of appointment and recruitment, the hardship and the injury that would be caused to the prospective selectees should be kept in mind. In this case, by the time the OA was filed, the provisional list was prepared on 6-11-1999 consisting of 40 selected candidates, Out of those, 30 candidates were already given appointments and by the time the writ petitioners could be called for counselling initially, the Tribunal passed orders on 8-11-1999 directing the official respondents to consider the cases of respondent Nos. 4 to 6 for appointment to the post of MHAs on the basis of the diploma produced by them without reference to memo dated 29-10-1999. Therefore, the writ petitioners could not be called for counselling. Further, as noticed above, in the said Government memo, the Government only postponed the consideration of the candidates like respondent Nos.4 to 6 as the very validity of the diploma certificates possessed by them was in question before this Court, the same having been derecognised by the Government. Furthermore, when the interim orders was passed by learned Tribunal none of the selected candidates were before the Tribunal and it was not in the interest of the selected candidates, and indeed it would prejudice them if an order is passed without they being made parties to original application. There is no doubt, as held by
the Supreme Court in Jaiswal P.K. DR. v. M/s. Debi Mukherjee, , that a candidate selected does not have any enforceable right for being appointed though such a candidate has a right under Articles 14 and 16 of the Constitution of India for being considered fairly an in accordance with law. A person included in the selection list, in our considered opinion, has legitimate expectation that in all probability he would be appointed by the appointing authority. Without hearing aggrieved persons, no Court or Tribunal, much less an administrative authority can pass an order prejudicial to the candidates whose names appear in the provisional selection list. Therefore, the impugned order of the Tribunal dated 15-11-1999 suffers from grave error, and cannot be sustained. The same is accordingly set aside.
23. As noticed above, after this Court passed orders on 7-12-1999 in WVMP No.3463 of 1999 and WPMP No. 31107 of 1999 in WP No. 24701 of 1999, the District Selection Committee purporting to enforce those orders reviewed the selection list and prepared a second selection list dated 24-3-2000, the basis on which respondent Nos.4 to 6 were appointed. The reason for review of the selection list and appointment of respondent Nos.4 to 6 is stated by the Director of Health-respondent No.2 in the counter-affidavit in the following terms:
“…..It is submitted that keeping in
view of the interim directions the Hon’ble High Court orders dated 6-12-1999 and 7-12-1999, the District Medical and Health Officer in his letter No. 52/NAMP/ 99, dated 15-12-1999 has requested for clarification from this office which in turn sought from the Government vide this office letter Rc. No. 11666/E4/E/99, dated 31-12-1999 as to whether the cases of the private candidates can be considered for appointment to the post of MPHA (M) on the basis of the rank
secured in the merit list. The Government has clarified the position vide Government Memo No.34078/J2/97-26, dated 13-3-2000 that in respect of the candidates of private institutions i.e., Institute of Public Health and Hygiene, New Delhi, College of Medical Technology, Ongole, Institute of Local Self Government, Bombay/Karnataka, appointment orders may be issued if their names are found in the final selection list subject to the outcome of the judgment in the writ petitions cited above.”
24. We are unable to find any justification for such course of action adopted by the Government as well as the District Selection Committee. This Court after hearing the parties, by order dated 7-12-1999 in WVMP No.3463 of 1999 and WPMP No.31107 of 1999 in WP No.24701 of 1999, passed by the following order:
“This Court by order dated 6-12-1999 had directed respondents 2 and 3 herein to appoint the petitioners if their names are found in the select list. Now, we direct respondents 2 and 3 to conduct the counselling and appoint the petitioners/ other eligible candidates if their names find place in the select list.”
25. From the above, it is clear that respondents were competent to consider and appoint the writ petitioners and other eligible candidates only as per the selection list. As on the date there were no two selection lists before the Court or the Government or the other respondents. The selection list which was referred to in the said order was the selection list dated 6-11-1999, and it is not possible to read the order of this Court as permitting the Government to issue memo dated 13-3-2000 directing respondent Nos.2 and 3 to issue appointment orders.
26. The necessity for preparation of the alleged new final selection list is not
satisfactorily explained. In any event, the Government memo dated 13-3-2000, on which the Director of Health places reliance, does not permit either the District Selection Committee or the Director of Health to prepare a revised second selection list. No rule or executive instruction is placed before us which empowers the District Selection Committee to review the provisional selection list. Be that as it may, in our considered opinion, the respondents are bound by the order dated 7-12-1999 issued by this Court whereunder it has only permitted the respondents to conduct the counselling and appoint the petitioners/ other eligible candidates only and not others. It is curious to note that after the selection list was reviewed, as many as eleven candidates who are not before the Tribunal and who allegedly possess the certificates granted by New Delhi Institute were appointed on 28-3-2000. After contempt proceedings were initiated, the Government by Memo No.16727/J2/2000-9, dated 8-3-2001 ordered to terminate those persons who were appointed as per the second selection list. The memo dated 8-3-2000 reads thus:
“3. The Government have examined the matter in pursuance of the order dated 7-12-1999 in WPMP No.31107 of 1999 in WP No.24701 of 1999 and order dated 2-8-2000 of the Hon’ble Andhra Pradesh High Court in CC No.625 of 2000 and decided to implement the orders of the Hon’ble High Court. The Director of Health/District Medical and Health Officer, Mahaboobnagar is therefore, requested to appoint the petitioners in CC No.625 of 2000 as MPHA (M), if their names are found in the selection list dated 6-11-1999 by terminating the candidates appointed as per 2nd selection list dated 28-3-2000, which has been stayed by the Hon’ble Andhra Pradesh High Court in its orders dated 2-8-2000 in CC No.625 of 2000.”
27. The above narration shows that the Government lately realised the purport and effect of the order of the Division Bench dated 7-12-1999. It also admits that the preparation of second selection list dated 24-3-2000 is per se illegal. The submission of Sri K. Laxmi Narasimha, learned Counsel appearing for proposed respondents 4 to 6 and proposed respondents in CC needs to be examined in the light of the above subsequent events. The learned Counsel submits that the concept of individual justice and distributive justice warrant a direction to the respondents to restore status quo ante so that respondent Nos.4 to 6 and other proposed impleaded petitioners can get back their jobs. He placed reliance on several judgements of the Apex Court viz., Dharwad PWD Employees Association v. State of Karnataka, , Desk Gupta v. Industrial Tribunal IV, Lucknow, , Union of India v. M.P. Singh, (1990) Supp SCC 701 = AIR SC 1098, S.P. Jadhav v. Flag Officer, Commanding in Chief, , Gurbax Singh v. Financial Commr., (1991) Supp 1 SCC 167 = ATR 1991 SC 435, Union of India v. Amrik Singh, , Union Carbide Corporation v. Union of India, , HC Puttaswamy v. Hon‘ble Chief Justice of Karnataka, , Munindra Kumar v. Rajiv Govil, and State of Bihar and others v. Kameshwar Prasad Singh and another, 2000 (4) Supreme 197, in support of his submission that the Court should view the case of respondent Nos.4 to 6 and others in the background of distributive justice. We are afraid, we cannot agree with the learned Counsel. It is no doubt true that the Court exercising powers under Article 226 of the Constitution of India can always mould the relief having regard to the equities and hardship that may be pleaded by the
parties before the Court, but it does not mean that Court should allow the benefits of an “illegality” to be enjoyed by another especially when the decision complained of is held to be unsustainable.
28. In Channabasavaiah v. State of Mysore, , the facts are as follows: Karnataka Public Service Commission after conducting necessary selection for appointment to Class I and Class II in State Administrative Services published a list of 98 persons who were selected. After the announcement of the said list, the Government sent additional list of 24 candidates to the Service Commission for consideration. Those candidates were approved, and consequently all the candidates in the first list and the additional list were appointed. Sixteen non-selectees moved the High Court under Article 226 of the Constitution of India challenging their non-selection inter alia on the ground that the Government appointed the candidates who have not appeared for the test and/or candidates who obtained less number of marks. The writ petition was disposed of on a compromise wherein the Government agreed to appoint the sixteen candidates who filed the writ petitions. Some of the non-slectees moved the Supreme Court under Article 32, of the Constitution of India invoking Articles 14, 15 and 16 of the Constitution of India. The Supreme Court allowed all the writ petitions holding that the selection of the candidates who obtained less number of marks in preference to those who obtained more number of marks, and selection of the candidates who had not appeared or who failed in the earlier selection, is unsustainable. Taking note of the hardship to the candidates who were appointed pursuant to the first selection list as well as the additional selection list, the Constitution Bench of the Supreme Court observed:
It is very unfortunate that these persons should be uprooted after they had
been appointed but if equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them we would be failing our duty if we did not, even at the cost of considerable inconvenience to Government and the selected candidates do the right thing. If any blame for the inconvenience is to be placed it certainly cannot be placed upon the petitioning candidates, the candidates whom this order displaces or this Court.
29. We have referred to the memo dated 8-3-2001 wherein impliedly the Government accepted the error committed by the District Selection Committee in reviewing the first selection list dated 6-11-1999, and accordingly ordered to terminate those persons who were appointed pursuant to the second selection list and ordered to appoint the petitioners. This order of Government dated 8-3-2001 is not challenged. It is also to be noted that admittedly out of 40 selected candidates, 30 candidates were already appointed and there was no justification to review the selected list after lapse of more than one year when the provisional selection list itself was acted upon. Further, we are of the considered opinion that the memo impugned before the Tribunal dated 29-10-1999 does not call for any interim order as there was no hardship or injury faced by the applicants before the Tribunal, which could not have been effectively rectified/remedied, especially when the Tribunal was dealing with the cases of appointment to the posts. It is to be remembered that in matters of appointment and promotions, ordinarily the Courts should not interfere at interlocutory stage as otherwise the same would cause irreparable loss to the public administration.
30. In regard to CC No.625 of 2000, we are of the opinion that the case need not be pursued further having regard to
the memo issued by the Government dated 8-3-2001 wherein the writ petitioners were directed to be appointed in obedience to the orders of this Court. Therefore, we are of the opinion that the rule should be discharged.
31. In the result, for the reasons aforementioned, we allow the writ petitions, discharge the rule against the contemnors and close the contempt case. The appointments of the writ petitioners shall abide by the final orders to be passed by the Tribunal in OA No.6757 of 1999, which is pending. The Government shall take necessary action in accordance with their memo dated 29-10-2000, however, subject to the final orders to be passed by the Tribunal in the afore mentioned OA. Needless to add that our determination is founded on prima facie findings and therefore the learned Tribunal is requested to consider the issues in OA, without being least influenced by this judgment. There shall be no order as to costs.
