JUDGMENT
N.V. Dabholkar, J.
1. Feeling aggrieved about the manner of implementation of Government guidelines pertaining to appointment of project affected persons (PAP for short), the petitioner has approached this Court with prayer for threefold relief as under:
(A) Quash and set aside the requirement of submitting an application and competing with other candidates as provided in the advertisement dated 17.8.2007, issued by respondent Nos. 2 and 3 for filling up the posts of Clerk-cum-Typist and Talathi, for project affected persons.
(B) Directions to respondents to fill in quota of not less than 5% of the posts of Clerk-cum-Typist and Talathi from project affected persons category, on the basis of seniority as mentioned in the register maintained by respondent No. 2 and in case the posts are not available, to convert the posts reserved for ex-servicemen and sportsmen category, for which candidates are not available.
(C) Prohibiting the respondents and other authorities referred in Section 10-6(a) and (b) of Maharashtra Project Affected Persons rehabilitation Act, 1999 (Act XI of 2001 for short) from filling in at least 5% posts in C and D category mentioned in the said sub-clauses, except from the category of project affected persons.
2. Petitioner is B.A. with Economics. He has passed Marathi Typing for 30 w.p.m. and English Typing for 40 w.p.m. He has also acquired Computer education and M.S. C.I.T. Certificate. He belongs to O.B.C. category. Agricultural land of petitioners family was acquired for the purpose of Hatnoor Dam and as such, petitioner is a PAP.
Petitioner was required to struggle considerably in order to have his certificate of PAP and registration in accordance with seniority. First application for PAP certificate was moved by petitioner on 8.8.1994, which was rejected by respondent No. 2. In February 1996 petitioner moved respondent No. 1 State in its Department of Revenue and Forest, and he was asked to approach the Collector. In July 1996, Collector again rejected his prayer for PAP certificate. When petitioner approached Mantralaya on the second occasion, report was called from the Collector and after considering the same, only on 12.12.1996 petitioner was issued a certificate. The Misery of petitioner did not end there. In the register maintained for PAP, for appointment against 5% quota, petitioners name was registered at Sr. No. 1900. Collector refused to give proper seniority to the petitioner and ultimately upon approaching respondent No. 1 State, Collector was directed to treat the application of the petitioner to be dated 16.8.1994 and place him in the seniority list at an appropriate location on the basis of the same.
According to petitioner, Government has issued directions under Act XI of 2001 from time to time and directed that 5% of Class III and IV seats in the Government or Corporations to be filled in directly from PAP, in accordance with the seniority list maintained by the Collector. In spite of this, petitioner is denied an appointment nearly for 13 years.
According to petitioner, Government, in the Department of General Administration, by resolution dated 21.1.1980, prescribed for the procedure requiring to keep quota of 5% in its employment for PAP. On 21.1.1993, further circular was issued declaring Government policy that provision of Government employment to PAP was paramount consideration for its resettlement policy. Consequently, such appointments were taken out from the jurisdiction of Secondary Services Selection Boards to enable the appointments of PAP directly. In order to enable the Government to give them higher priority, Collectors were directed to prepare a list of PAP and to forward the names to Departments concerned for appointments. By another resolution dated 30.9.1993, it was pointed out that as a matter of policy of the Government, 5% employment in Class C and D category was to be provided to PAP, not only in the services of the State but also in the services of various Corporations, Zilla Parishads, local authorities etc. A note was taken that in spite of earlier directions, the PAP were not getting benefit of the policy, in the employment, in accordance with their seniority and, therefore, Collectors were directed to maintain the record including a register in which PAP were required to be registered in accordance with the date of application (for PAP certificate) by concerned individual. All the appointing authorities were expected to requisition the names of PAP and Collectors were to recommend those from the register maintained as per seniority. Further, by circular dated 30.1.2004, priority to be given to the PAP was emphasised. This position is reiterated in the latest Government Resolution on the subject, dated 25.10.2005 (although as many as 5 Government resolutions/ circulars are referred by the petitioner in the body of the petition, petitioner has filed copies of only following Government Resolutions/ Circulars dated 21.1.1980 is at Paper Book Page 26 and dated 25.10.2005 -P.B. Page 36, there are two more Government Circulars on the record dated 22.9.1993 at Page 28 and 13/9/2000 at Page 30, although those are not referred in the pleadings).
Petitioner also relies upon Section 10(6) of Act XI of 2001 in order to propound that PAP are entitled to an appointment to Class III and IV posts to an extent of 5% of the cadre strength without being required to apply in response to an advertisement for recruitment and without being required to compete with general candidates.
On 17.8.2007, respondent Nos. 2 and 3 have issued an advertisement (Annexure D – Paper Book page 46) for recruitment of 101 posts of Clerk-cum-Typist and 57 posts of Talathi, showing 4 and 3 posts in respective categories as reserved for PAP. Name of the petitioner was recommended by District Settlement Officer. Yet, petitioner was compelled by respondent Nos. 2 and 3 to apply in particular category, under the threat that otherwise his case may not be considered for appointment. Petitioner applied for both the posts, but also filed an application in protest, which is not responded. A list of candidates eligible for written test is displayed by the Collector on the notice board. The name of the petitioner does not appear in it and on enquiry, he was orally informed that in terms of special instructions and Government circular dated 9.6.2004, his name cannot be considered.
The contention of the petitioner is that the PAP cannot be required to compete with other candidates nor they can be excluded because there are more meritorious candidates available. Recruitment to 5% posts in Class C and D of PAP is priority quota as a result of Government policy for rehabilitation of PAP and, therefore, actions of the respondents regarding the method of recruitment carried out pursuant to advertisement dated 17.8.2007 is totally in breach of statutory provisions, Government policy and, therefore, arbitrary. The object of directing maintenance of register as per the seniority of the date of application and effecting appointments of PAP through such list only in Class C and D category, which are not to be filled in through Maharashtra Public Service Commission, is aimed at ensuring that persons of this category are appointed directly to the post reserved as priority quota only by considering that they fulfil eligibility criteria. According to petitioner, the spirit behind reservation of priority quota is as under:
The state was required to acquire agricultural lands to large extent for various development activities. Resettlement of the persons affected by such acquisition has also been the responsibility of welfare State. Mere payment of compensation for the acquired land has always been considered to be inadequate, since the person displaced may not be able to come to terms with life merely by having cash at hands. In order to overcome this problem, the State, in order to discharge its obligation, has made provision of various resettlement schemes, which includes reservation of priority quota for PAP.
From all the contentions raised, described as hereinabove, it is the submission of the petitioner that PAP cannot be required to compete with candidates from open market, they also cannot be compelled to compete between themselves and till the time 5% quota in Class C and D category posts is available, they are required to be appointed from the wait list prepared by the Collector, with only one condition that the candidate in the wait list fulfils eligibility criteria.
3. Reply is filed by Shri Abhijit Bhande, working as Tahsildar, Raver, District Jalgaon on behalf of respondent Nos. 2 and 3, on 30.1.2008 and another reply is filed after arguments were over, on 29.2.2008 by Shri Sanjay Bagade, Chitnis (Tahasildar), Collector Office, Jalgaon.
According to respondents, Government has issued detailed instructions and guidelines for appointment of PAP by Government Resolution dated 13.9.2000. Petitioner had applied for seeking an appointment from PAP category and by communications dated 28.10.2005, 17.2.2006 and 15.3.2007, he was informed that his name will be recommended to appointing authorities as per the placement in the waiting list. So far as the advertisement dated 17.8.2007 for recruitment of Clerk/Typist and Talathi, it is said that as per guidelines issued by the Government in Resolution dated 9.6.2004, a merit list/ select list of the candidates eligible for interview was prepared, considering the marks secured by them in S.S.C. examination and the list was displayed on the notice board. The candidates were selected for interview and not for written test. This was done for the purpose of short listing because as many as 28000 applications were received from PAP category (We feel some error in this statement, probably 28000 may be the number of total applications received. We also feel reference to Government Resolution dated 9.6.2004 to be misplaced. Copy of this resolution is annexed to the reply at Paper Book Page 65. This resolution cancels the directions issued by the earlier resolution dated 5.6.2004. The resolution only prescribes that newly established Selection Committees carry out recruitment for Class C posts, which recruitment was earlier being carried out by erstwhile Selection Boards. The present practice of 90% marks for written examination and 10% for interviews was changed to 75% for written or at the examination which is eligibility qualification and 25% for oral). The procedure so adopted was confirmed by Divisional Commissioner, Nasik. In the subsequent para of the reply (internal page 8), it is said that totally 28000 applications were received from all categories. Select list of candidates eligible for interview is closed at 81% marks obtained at S.S.C. examination by the candidates for the post of Talathi and 60% marks for Clerk/ Typist posts for PAP category. Petitioner having secured 57.85% marks at S.S.C. examination, could not be placed in the list prepared for oral interview.
In the second reply, reliance is placed upon directions issued by the Honourable the Apex Court while disposing of Civil Application Nos. 11646 and 11724 of 1996, dated 22.8.1996. (In fact the observations are from the reported judgment in the matter of Excise Superintendent, Malakapatnam, Krishna District, Andhra Pradesh v. K.B.N. Visveshwera Rao and Ors. , which is a judgment rendered on 22.8.1996 in Civil Appeal Nos. 11646-11724 of 1996 and not in Civil Applications). The contents relied upon by the affiant are part and parcel of para 6. The Government, in General Administration Department, has issued Government Resolution dated 25.10.2005, making a reference to the directions issued by the Supreme Court in above mentioned appeals as also the observations of the Supreme Court in the matter of A. Umrani v. Registrar, Cooperative Societies, Tamil Nadu AIR 2004 SC 4504. According to affiant, in the matter of A. Umrani, Honourable Apex Court has issued directions that while filling of the vacant posts, proper procedure should be followed by Government and Semi-Government authorities as well as public undertakings and nobody should be appointed by giving back door entry. The respondent No. 3 Committee, therefore, by advertisement dated 17.8.2007, has given wide publicity, list of eligible PAP candidates was also called from the District Rehabilitation Department, Jalgaon. Name of the petitioner was sponsored by the said officer. After clubbing both the lists of applicants from open market and sponsored by the Resettlement Officer, select list was prepared on the basis of Government Resolution dated 9.6.2004 on the basis of marks secured at S.S.C. examination. PAP merit list was closed at 72.28% marks at S.S.C. examination and 9 candidates were eligible for interview. O.B.C., PAP select list is closed at 60% marks at S.S.C. examination. Petitioner having secured only 57.85% marks at S.S.C. examination, was not eligible to be summoned for interview.
4. The controversy, therefore, boils down to following issue only:
Whether candidates from PAP category by virtue of provisions of Act XI of 2001 and various instructions/ guidelines issued by the State Government under the same, as also by virtue of its policy regarding resettlement/ rehabilitation of displaced persons, are entitled to appointment in 5% priority quota in Class C and D services of State Government and other authorities, such as Zilla Parishads, Corporations and Local Self governing bodies, in order of seniority of the applications for PAP certificate and without being required to compete with open market candidates and within themselves ?
5. The provisions from Act XI of 2001 as also contents from four Government Resolutions/Circulars dated 21.1.1980, 22.9.1993, 13.9.2000 and 25.10.2005, may usefully be reproduced in order to appreciate the submissions on behalf of the petitioner:
Preamble of Maharashtra Project Affected Persons rehabilitation Act, 1999 (Act XI of 2001) reads thus:
An act to consolidate and amend the law relating to the rehabilitation of persons affected by certain projects in the State of Maharashtra and for matters connected therewith or incidental thereto.
The term project is defined in Section 2(10) and affected person is defined by Section 2(2). We are not required to refer to these things, because petitioner is already certified to be PAP. Chapter III is pertaining to rehabilitation of affected persons and Section 10 identically titled, is the first section in the said chapter. Subsection (6) relied upon by learned Counsel for the petitioner reads thus:
6(a). In all Class III and Class IV category of services under the establishment of the State Government Departments, public sector undertakings, local self-Government, Government aided institutes and Cooperative Societies specified under Section 73-A of the Maharashtra Cooperative Societies Act, 1960, there shall be not less than 5% priority quota for the employment of nominees of the affected persons.
(b) The beneficiary persons, societies, companies, factories, sugar factories, spinning mills assisted by the State Government in the form of matching share contribution etc., shall provide employment to not less than 5% of the cadre strength of Class III and IV or equivalent non-technical employees to the nominees of the affected persons;
Provided that, the above priority shall be treated as preference among the open and different reservation categories in pro rata manner.
(c) The Collector shall maintain a register showing the recruitment position in the district and ensure removal of backlog in the recruitment of the nominees of the affected persons. However, at any recruitment the percentage of the persons so recruited from amongst the nominees shall not exceed fifty.
We are provided with vernacular (Marathi) text of Government Resolutions and, therefore, we shall be reproducing either free lance English translation or sum and substance of the material from the Government Resolutions, relied upon by learned Counsel for the petitioner.
Government Resolution dated 21.1.1980 is titled as “Priority in the appointments to Class III and Class IV posts for Government services for project affected persons and their dependents.” The Government Resolution in its opening paragraph indicates that a facility was provided to give priority to PAP or their dependents in the appointments to Government services, in accordance with Government policy for rehabilitation. The persons if they are registered with Employment Exchange, and if they are fulfilling the conditions required for appointment, they are given preference in appointment to the posts which are beyond purview of M.P.S.C. They are given highest priority in recruitment for Irrigation Projects and in that case they are not required to be registered with the Employment Exchange. PAP outside Greater Bombay, if their houses are acquired or 75% agricultural land is acquired, are entitled to relaxation of three years in the upper age limit. The PAP are also entitled to relaxation of upper age limit by equivalent period for which even service of temporary nature is rendered. The second paragraph expresses the Government having noticed that the concessions given to PAP do not work effectively in the practice. Except in the recruitment for irrigation project PAP are not given highest priority and consequently the PAP or their dependents do not find the concessions to be much useful. There was a persistent demand that they should get highest priority for Government services, because PAP are displaced persons because of various projects undertaken by the Government for development purpose, they are required to start the life afresh and to face many difficulties. It is expressed that Government, by recognising this sacrifice, has desired to make the concession made available in the appointment to Government services effective and fruitful and to render assistance in the work of rehabilitation, Government feels that it is necessary to accord definite priority to PAP and hence the directions (A) to (E) are issued.
Some portions from directions (A) and (B) only were relied upon by learned Counsel, which say that not only in the matters of irrigation projects but in the appointments to all the projects of Government and irrespective of the fact whether Maharashtra Rehabilitation of Project Displaced Persons act, 1976 is applicable to the said project or not PAP or their dependents should be given highest priority for appointment to III and IV Class posts on the establishment. For the purpose of such appointment, it is not necessary to make any reference either to Employment Exchange or to State Selection Board. As per Clause (B), this highest priority is to the extent of 5% of the total posts. In case a PAP belongs to reserved category, he would get priority in the category to which he belongs out of 34% seats for reserved category.
Government Circular dated 22.9.1993 is titled as “Regarding priority to project affected persons or their dependents in the appointments to project establishments and other Government, Semi-Government, Corporations, Zilla Parishads, Municipal Corporations, Class III and IV services. The opening paragraph indicates that Government has already issued instructions to give highest priority to the PAP or their dependents in the appointments to the Class III and IV services on the project establishments, various Government Departments, Government sponsored Corporations, Government supported Corporations, Government run institutions, Zilla Parishads, Municipal Corporations and Municipal Councils. Similarly, Government has also issued orders of excluding PAP from the purview of Secondary Services Selection Board for such appointments and appointing authorities to make such appointments directly. It is observed that the orders issued by Government from time to time were not being complied with strictly and, therefore, in order to effectively implement the Government policy of employment to PAP on 5% priority quota, the Government prescribes the mode for such appointments by this resolution:
1) District Collector should prepare up-to-date list of project affected persons.
2) the Collector should send the names in the list to concerned Departments in Government and Semi-Government Offices or authorities.
3) The concerned Government or Semi-Government office or the appointing authority should send the information regarding project affected persons who are appointed and Collector should delete the names of such project affected persons from the list.
4) …
5) The District Collectors should conduct monthly assessment whether project affected persons are being given appointments by highest priority to the extent of 5% posts.
Government Circular dated 13.9.2000 is titled as “Regarding procedure to be adopted for appointing project affected persons or their dependents on Class III and IV services in the Government. It is indicated that as per Government Resolution referred at Sr. No. 5 in the references, the project affected persons are required to send their applications directly to appointing authorities for the purpose of appointments to 5% priority quota. It is said that the instructions are being issued, since it was noticed that the project affected persons in the wait list prepared by the Collectors are not being given appointments in accordance with the seniority. The instructions issued are:
1) The Collectors, while preparing the wait list of project affected persons, should determine the seniority on the basis of first application presented by the project affected person and a register should be maintained for the purpose.
2) The appointing authorities should not directly appoint the project affected persons but they should ask for the names from the list of project affected persons maintained by the Collector in the light of appointment rules and without prejudice to reservations for backward classes.
3) The Collectors should recommend the names to appointing authorities in accordance with the seniority.
4) Appointing authorities should inform the Collector about the appointment, whereafter concerned Collector should delete the name of such candidate from the wait list.
Government Resolution dated 16.3.1999 appears to have been issued in the light of directions issued by this Court in Writ Petition No. 4067 of 1998 to the Government directing them to issue suitable guidelines as per directions by the Honourable the Supreme court in the matter of Anil Kumar Gupta v. State of Uttar Pradesh . In this Government Resolution, project affected/ earthquake affected is shown as horizontal reservation of 5% available to only Class C and Class D services.
Government Resolution dated 20.10.2005 is titled as “Consolidated guidelines for recruitment to Class C and D Government services”. It is evident that these are general guidelines and not the guidelines specifically applicable to appointment of project affected persons or their dependents. Para 3(b) is pertaining to reservation of project affected persons and it states that 5% special reservation is provided for project affected persons as per Government Resolution dated 21.1.1980. In some cases, there is provision for relaxation of upper age limit by three years in the reservation for project affected persons. Now earthquake affected persons are also included in the project affected reservations (Refer Government Resolution dated 17.11.1994) Maharashtra Act No. XI of 2001 has provided 5% quota for project affected persons or their nominees and the procedure to be followed in giving appointments to them in Class C and Class D posts of Government services, is prescribed by Government Circular dated 13.9.2000. In para 6 of this Government Resolution there is reference to certain observations of Honourable Supreme Court in the matters of Civil Appeals (not applications) Nos. 11646-11724 of 1996 and A. Umrani v. Registrar, Cooperative Societies, Tamil Nadu as understood by State.
6. For opposing the contention of petitioner that for appointment to 5% priority quota reserved for PAP they are not required to compete with open market candidates or within themselves, learned A.G.P. has placed reliance upon observations of the Supreme Court in the matter of A. Umrani v. Registrar, Cooperative Societies and Ors. AIR 2004 SC 4504. As indicated hereinabove, reliance is also placed upon the judgment in the matter of Excise Superintendent, Malakapatnam, Krishna District, Andhra Pradesh v. K.B.N. Visveshwera Rao and Ors. by reproduction of certain observations from para 6 of the judgment in second reply. We have on our own referred to the judgment of the Supreme Court in the matter of Anil Kumar Gupta v. State of Uttar Pradesh and Ors. . This is because the same is referred at Sr. No. 10 in Government Resolution dated 16.3.1999 produced at Paper Book Page 39 and which is Annexure I to Government resolution dated 25.10.2005.
7. Heard respective counsel. Rule. Rule made returnable forthwith and Advocates were heard for final disposal.
On reference to Section 10(6), it is evident that by virtue of Clauses (a) and (b), it is mandatory to keep “not less than 5% priority quota” for the employment of nominees of affected persons, not only in the State Government Departments but also public sector undertakings, local self Government, Government aided institutions, specified cooperative societies and those beneficiaries assisted by the State Government in the form of matching share contributions. The only restrictions imposed are in the proviso to Clause (b) and in Clause (c). The proviso requires that priority shall be treated as preference among the open and different reservation categories in pro rata manner, which, in other words, can be said as priority quota is compartmentalised as described by the Honourable the Supreme Court in the matter of Anil Kumar Gupta. By Clause (c), Collector is required to maintain a register showing recruitment position in the district and ensure removal of backlog in the recruitment of nominees of affected persons. Here there is another restriction. The percentage of persons so recruited (as nominees of PAPs) should not exceed fifty at any recruitment.
The term priority quota is not defined in Act XI of 2001. The dictionary meaning of word priority is “being earlier or antecedent, a precedence in rank; an interest having prior claim for consideration”. According to dictionary, quota means share that individual person or company is bound to contribute to or entitled to receive from a total. We must keep in mind that in the Act which is specially enacted by keeping the object of rehabilitation of persons affected by certain projects, what is reserved for appointments of PAPs is described as priority quota and not as reservation although such a phrase has later on occurred in Government Resolutions/ Circulars on the subject. We have already indicated that proviso to Subsection (6)(b) of Section 10 clearly indicates that this priority quota is compartmentalised for all the categories of candidates i.e. open as well as reserved as social reservations.
On reference to Government Resolutions/ Circulars, following features are required to be taken a special note.
On reference to Government Resolution dated 21.1.1980, it is evident that the concession for appointments in other Government Departments are brought at par with those regarding appointments on Irrigation projects. Prior to this resolution, for appointments in other Government Departments, PAPs were required to be registered with Employment Exchange and the priority was not highest priority. By this resolution dated 21.1.1980, it is declared that PAPs will have highest priority in the appointments in other Government Departments as well and there is no need to refer to Employment Exchange or State Selection Board. Thus, this resolution dispensed with necessity of registration with Employment Exchange. It also dispensed with requirement of selection by State Selection Board, for PAPs to enjoy concession of appointments to Class III and IV or Class (C) and (D) posts with various Government Departments. Circular dated 22.9.1993 indicates that the appointments of PAPs were excluded from the purview of Secondary Services Selection Board. This is another indication that PAPs are not required to go through the regular selection process. As a result of this, the appointing authorities could directly appoint PAPs on the seats within priority quota. The Circular dated 22.9.1993 also indicates that directions to above effect are already issued and there are also directions in the field that not only to various Government Departments but Government sponsored Corporations, Government aided Corporations, Zilla Parishads, Municipal Corporations and Municipals Council to whom Government has power to issue guidelines, are also to recognise and act upon this priority quota for appointments to Class III and IV posts of PAPs. This is described as “Shasanache Dhoran” i.e. Government Policy. The directions issued in Circular dated 22.9.1993 and 13.9.2000 clarify the position which is somewhat ambiguous if we refer to Clause (c) of Sub-section (6) of Section 10; regarding the nature of register to be maintained by the Collector. When the instructions in these two circulars are taken into consideration, it is evident that Collector is required to maintain a seniority list in accordance with the date of application for PAP certificate, appointing authorities are to invite the names from such register if there is vacancy in the 5% quota for PAPs. Exclusion from the purview of State Selection Board and Secondary Selection Board indicates that once the name of eligible PAP from the list maintained by the Collector is referred in accordance with seniority, the appointing authority has power directly to appoint such a candidates. We, therefore, feel that the submission of learned Counsel for the petitioner that PAPs are not required to apply for appointment as direct nominees nor they are required to undergo a selection process by competing with open market candidates or by competing within themselves, has quite a good substance.
It may not be out of place to point out the manner in which the priority quota is described in Section 10(6)(a), “there shall be not less than 5% priority quota”, which is indicative of the fact that in a given case Government may be in position to prescribe more than 5% priority quota as available to PAPs, of course subject to limitation that pro rata distribution among the open and different reservation categories is maintained.
The philosophy that these project affected candidates are not required to compete with open market candidates nor they can be eliminated because they are less meritorious can be supported by taking into consideration the purpose for keeping such priority quota. We may say at the cost of repetition that priority quota means a share with precedence over others and that is why we have pointed out earlier that Act XI of 2001 describes the reservation for appointments of PAPs as priority quota and not as horizontal reservation. If there are 100 posts either in Class III or Class IV in a Department, 5 posts are required to be offered to PAPs. There need be no competition with open market applicants because of Government policy and which policy must be said to be laudable, aimed at rehabilitation of persons displaced because of acquisition of their land for development project. An agriculturist in the field for years together, as soon as the land is acquired, may not be able to come to terms either to purchase another land from the money received by him as compensation or start a business. With years together in the field of agriculture, he may not be mentally prepared to take adventurous steps. The priority quota is offered only in Class III and IV posts. The use of phrase non-technical employees in Clause (b) to Sub-section (6) indicates that these are posts wherein the job can be learnt with minimal efforts and that is why only these posts are offered for rehabilitation of PAPs. We even appreciate the guidelines issued by the Government to maintain a seniority register. There is no sense in offering an appointment to a PAP ten years after he is displaced. In fact it may not be out of place to say that the appointments to PAPs must be treated at par with compassionate appointments. (No doubt by repeated instructions relaxing the scheme for compassionate appointment in terms of time factor, Government has, to some extent, made mockery of compassion and opened doors for back door entry. Initially limitation to apply was one year, which was extended to five years and now a minor can apply within five years since attaining majority by ignoring as to how minor was brought up till attaining age of majority). The appointment either on compassionate ground or appointment to PAPs as a part of rehabilitation policy must be offered at the earliest, in any case within a year or two. Thinking in this manner further strengthens argument that PAPs need not wait for regular recruitment process by an advertisement. Instances of Government Departments not taking up timely recruitment processes in spite of vacancies or Government declaring prohibitions against recruitment for certain period are not far and few. A PAP cannot be expected to wait by keeping his fate in suspension till the advertisement occurs or till Government withdraws such prohibition. Such a thinking will be against the spirit of rehabilitation for which Act XI of 2001 is enacted and brought into force by the State legislature. State shall be justified in giving appointments with the principle “First come first served”. The person who is first displaced must be rehabilitated first and this enables us to accept the contention that the PAPs are not required to compete between themselves. Even if a candidate registered at Sr. No. 1 is less meritorious than a candidate at Sr. No. 2 in the seniority list maintained by the Collector, Sr. No. 2 candidate cannot have precedence over candidate at Sr. No. 1. This is because displacement of candidate at Sr. No. 1 is prior in time and, therefore, he will have precedence over candidate at Sr. No. 2 who is displaced later. One who has applied belatedly for a certificate as PAP, has to suffer by being lower in the seniority list due to lapse on his own part.
Only two restrictions are required to be observed scrupulously by the appointing authority, whether of the Government Departments or other categories described in Sub-section (6) of Section 10.
8. Reliance is placed in the second reply filed on behalf of respondent Nos. 2 and 3 on the contents of para 6 of the judgment of the Supreme Court in the matter of Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and Ors. . On going through the judgment, it can be seen that the respondents were candidates not sponsored through the Employment Exchange for selection to the 723 posts sought to be filled up from the candidates sponsored through the medium of Employment Exchange. They had independently applied for consideration of their claims but were not considered. Consequently, they approached the Tribunal seeking directions for their appointment. Although there was difference of opinion amongst the members of the Tribunal, the majority of two members held that sponsorship of the candidates through Employment Exchange was valid and not violative of Articles 14 and 16 of the Constitution of India. While dealing with the appeal by the Department, the Supreme Court observed and which observations are reproduced in second affidavit:
Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/ establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied.
It must be taken into consideration that the Honourable the Apex Court was dealing with general procedure for selection and appointment. It took a note of mischief at the level of employment exchange and, therefore, expressed that the candidates sponsored by employment exchange as also who have applied directly should be considered together. The Supreme Court was not dealing only with a category, provided with priority quota as a part of rehabilitation policy.
In fact in the same judgment, Honourable the Apex Court referred to its observations in earlier judicial pronouncement in the matter of Union of India v. N. Hargopal , which was a case pertaining to handicapped candidates sponsored through employment exchange, wherein it was held that sponsorship through the medium of employment exchange would not violate Articles 14 and 16. On the other hand, it would advance the rights to the handicapped. In that view, the Supreme Court had upheld the restriction imposed by the State and Central Governments to consider the cases of the candidates (handicapped) through medium of employment exchange. The case of PAPs should be more closer to the handicapped being considered only by sponsorship through employment exchange. In the case of PAPs, they would be sponsored by Collector/ Resettlement Officer, who maintains the list of PAPs in order of seniority. Thus, there is no point for which appointment of PAPs by various appointing authorities on the names being sponsored by the Collector/ Resettlement Officer from the seniority register maintained for the purpose would vitiate the appointment merely because they are not required to apply nor required to be subjected to selection process along with other general candidates.
These entries in the employment through register maintained by Collector/Resettlement Officer cannot be termed as back door entries by dodging applicants in response to an advertisement for recruitment. This is because the priority quota is reserved for PAPs and they get entry into service in that quota only upon obtaining a certificate of being PAP and registration to that effect with Collector/ Resettlement Officer for fixation of seniority. Other applicants responding to advertisement are thereby not deprived of any seat because they are not entitled to appointment on this priority quota reserved for rehabilitation of PAPs.
9. Learned A.G.P. has placed reliance upon the judgment in the matter of A. Umrani v. Registrar, Cooperative Societies and Ors. AIR 2004 SC 4504. Having gone through the judgment, we are of a considered view that the ratio laid down in the said judgment has no application to the issue at hands. The judgment mainly lays down that the regularisation is not and cannot be mode of recruitment by any State within the meaning of Article 12 of the Constitution. Regularisation further more cannot give permanence to an employee whose services are adhoc in nature. In para 41, observations in earlier judicial pronouncement in matter of R.N. Nanjundappa v. T. Thimmaiah and Anr. are borrowed, which read :
If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularised. Recognition is possible of an act which is within the power and province of the authority but there has been some non compliance with the procedure or manner which does not go to the root of the appointment.
Neither petitioners have come with a case nor it is open for the State to plead that priority quota reserved for PAPs by the State is beyond powers and province of the said authority.
So far as judgment in the matter of Anil Kumar Gupta etc. v. State of U.P., the Supreme Court has laid down the guidelines as to how social reservations (vertical reservations) and special reservations (horizontal reservations) are required to be operated. We have already indicated that proviso to Sub-section 6(b) clearly indicates that priority quota if to be allotted to open and different reservation categories in pro rata manner, it will have to be termed as compartmentalised horizontal reservation.
In the light of reasons discussed hereinabove, we feel that none of the three judicial pronouncements referred by the State persuade us to hold that it is compulsory for PAPs to go through regular selection process for appointments to the posts from priority quota offered to them by Act XI of 2001.
10. We, therefore, allow the writ petition although not strictly in terms of prayer clauses.
(1) We uphold the contention advanced on behalf of the petitioner that so far as appointments of PAPs to 5% priority quota, they are not required to apply, as if open market candidates; in response to an advertisement nor they are required to compete with open market candidates. They are also not required to compete between themselves and ordinarily they should be appointed in order of seniority. The only occasion for making an exception would be for observation of compartmentalised reservations e.g. if there are 10 posts in a Department for PAPs category and 5 posts are already filled in by open category and, therefore, there are vacancies only of reserved category, open category PAP in the wait list will have to make a room for candidate below him of reserved category.
(2) The recruitment, if any, carried out by the respondents pursuant to advertisement dated 17.8.2007, so far as it relates to PAPs category, must be held vitiated and quashed.
(3) In the light of view taken by us as above, it is desirable to direct learned A.G.P. to place a copy of this judgment before the Chief Secretary of the State for appropriate directions to all appointing authorities referred in Clauses (a) and (b) of Sub-section (6) of Section 10 of Act XI of 2001. They should be directed to:
(i) Take an assessment of total cadre strength in Class III and IV (Class C and D”) (non technical) of each Departments, find out how many seats are available to PAPs as priority quota and how many are vacant.
(ii) For vacancies identified, all the appointing authorities should ask for the names of PAP candidates registered with Collector/ Resettlement Officer, who are eligible for appointment as per rules (by giving due consideration to social reservations i.e. to vacancies of reserved category, the first candidate from that category in the seniority list should be sponsored) and issue appropriate appointment orders to such candidates sponsored from seniority list.
(iii) Now onwards there should be no need to advertise the vacancies available for PAPs and appointments of PAPs should be carried out strictly in accordance with the instructions so far issued by the Government from time to time, i.e. strictly from the seniority list maintained by Collector/ Resettlement Officer on verifying the eligibility according to rules for the post and without any competitive examination.
(iv) The exercise of identifying the vacancies and filling those, all over the State and with all appointing authorities, should be completed within a period of 18 months from today.
(4) Needless to say that benefit of observations and directions in this judgment should be available to all the PAPs irrespective of the fact that they are not party to present petition.
(5) Rule made absolute accordingly.