ORDER
K.M. Agarwal, J.
1. In all these petitions under Article 226 of the Constitution, a common prayer has been made for quashing the repeal of Andhra Pradesh Law Officers (Recruitment, Conditions of Service and Remuneration) Rules, 1967, (in short, the “1967 Rules”), made by notification with G.O.Ms. No. 55, dated 16-3-1990 of the Law Department of the State of Andhra Pradesh; and the simultaneous order with G.O. Ms. No. 57, dated 16-3-1990, containing the Executive Instructions regulating the recruitment, conditions of service and remuneration of the Law Officers of the Government of Andhra Pradesh other than the Advocate General, (in short, the “Executive Instructions”). In W.P. No. 11896/90, a further prayer has been made for restraining the respondents from making appointments to the post of Assistant Public Prosecutor Grade II in Chittoor District without the aid of Employment Exchange, or without inviting applications for the said post by advertisement, without any process of selection and without adequate safeguards or reservations for the advocates belonging to the scheduled or backward classes. Similarly in W.P. No. 16247/90, an additional prayer has been made for quashing the Government decision as violative of Article 16(4) and of the decision of this Court in W.P. No. 9652/83, dated 24-1-1984, besides claiming a relief for appointment of the petitioner as Special Public Prosecutor after quashing that of the 3rd respondent therein by G.O.Ms. No. 198, dated 8-11-1990 issued by the Law Department of the State of Andhra Pradesh. In W.P. No. 853/94 an additional prayer was made by filing W.P.M.P. No. 1023/94 for directing maintenance of status quo in reference to the appointment of Public Prosecutor for West Godawari District, pending disposal of the writ petition on merits and in this round-about manner, the petitioner therein was successful in continuing to hold the office of Public Prosecutor of West Godavari District, frustraing the directions made in W.P. No. 7540/93, dated 3-12-1993, which was filed by the petitioner in W.P. No. 853/94 himself, challenging the appointment of one K. Janardhana Rao to the said post by G.O.Ms. No. 210, Home Department, dated 3-6-1993.
2. To give a brief resume of relevant facts, the 1967 Rules pertaining to recruitment of Law Officers in the State of Andhra Pradesh were rules framed under Article 309 of the Constitution. These rules did not make any provision for reservation of posts of Law Officers for backward classes, scheduled castes and scheduled tribes or for any other weaker sections of the society. It appears, pursuant to a representation made by the President of the Andhra Pradesh Backward Classes Association in 1983, the question about feasibility of making adequate provisions regarding reservations in 1967 Rules was examined by the Government and, as a matter of policy, the Government decided to make provisions for reservation of posts of Law Officers for persons belonging to Backward Classes, Scheduled Castes and Scheduled Tribes. It further appears, that before implementation of this Government policy, W.P. No. 9652/83 dated 24-1-1984 was filed by the Andhra Pradesh B.Cs., S.Cs. and S.Ts. Advocates’ Association for directing the State Government to implement the rule of reservation in favour of Backward Classes, Scheduled Castes and Scheduled Tribes in the matter of appointment of Law Officers, by amending 1967 Rules, if necessary. On 24-1-1984 this Court rendered its decision in W.P. No. 9652/83, between A.P.B. Cs., S.Cs.& S. Ts. Adv. Assocn. and Chief Secy, to Govt., 1984 Lab. I.C. 1053 (A.P.) and it was directed that:
(i) the Government of Andhra Pradesh shall, in pursuance of the decision already taken by it, make forthwith a provision providing for reservation in favour of Scheduled Castes, Scheduled Tribes and Backward Classes, in the matter of appointment of Law Officers in the State. It is for the Government to decide, whether to make such provision by an administrative order-which also is held sufficient for this purpose by the Full Bench of Punjab and Haryana High Court in Kanwal Parkash v. State of Punjab, (1976) 2 Ser.L.R. 801 – or by making a rule under the proviso to Article 309 of the Constitution of India. The provision shall make, as already decided by the Government, substantially in the same terms as Rule 22, Andhra Pradesh State and Subordinate Services Rules;
(ii) pending the making of such provision, the Government shall not make any appointment to the category of Law Officers under the A.P. Law Officers (Recruitment, Conditions of Service and Remuneration) Rules, 1967, in the State of Andhra Pradesh.
By sheer co-incidence, the very next day of the said decision of this Court, the Government issued G.O.Ms. No. 14, dated 25-1-1984, introducing the rule of special representation in the 1967 Rules. After allowing the 1967 Rules with amendments carried out in 1984 to prevail for about a period of six years, the State Government with the advice of its Law Secretary decided to repeal the 1967 Rules and to replace them by the impugned Executive Instructions with no provision for reservation of posts of Law Officers for backward classes, scheduled castes and scheduled tribes Advocates and accordingly issued the impugned notification and the order, dated 16-3-1990, giving rise to these petitions. To complete the narration, during the pendency of these petitions, the Government on 29-1-1994 issued G.O.Ms. No. 15, introducing certain amendments in the impugned G.O.Ms. No. 57, dated 16-3-1990. By these amendments, eligibility qualifications for appointment of a person as Law Officer were prescribed and paragraphs 2C and 3B were inserted with a provision for preferences to SC/ST and BC candidates. By further G.O.Ms. No. 18, dated 3-2-1994, a provision was made for selection of SC/ST and BC candidates for undergoing training under the Law Officers on payment of monthly stipends. By the last G.O. Ms. No. 30, dated 1-3-1994, the impugned G.O.Ms. No. 57, dated 16-3-1990 was further amended and the experience qualification at the Bar was reduced from 15 years to 10 years.
3. Before we proceed to discuss the main issues raised in these petitions, we would like to deal with and decide some independent issues raised in the last three W.P. Nos. 11896/90,16247/90 and 853/94.
4. In W.P. No. 11896/90, the petitioner No. 2 Sri B. Racharayudu was perhaps aspiring for’ the one vacant post of Assistant Public Prosecutor Grade II in Chittoor District. According to the petitioners, appointment to the said post of A.P.P. Grade II was required to be made in accordance with A.P. General Subordinate Service Rules, which provided for special representation and the appointment to be made by open competition, but in the case, the procedure was not followed. No applications were invited through the Employment Exchange, or through advertisement. It was claimed that the local police had verified the antecedents of the petitioner No. 2, but because of political pressure, his name could not be recommended by the District Collector. However, we find no substance in the contentions. The appointment to the said post of A.P.P. Grade II could not be shown to be regulated by the said rules, nor any material could be placed to warrant a conclusion that because of political pressure, the name of petitioner No. 2 could not be forwarded. The contentions are, therefore, over-ruled.
5. In W.P. No. 16247/90, the petitioner claimed that for a period of three years from 2-9-1987 to 2-9-1990, she worked as an Additional Public Prosecutor for the Court of Additional Sessions Judge, Mahaboobnagar and that her name was recommended for re-appointment for a fresh period of 3 years, but 3rd respondent was appointed to the said post for a third term in violation of the rule of reservation for women and that of Rule 6(1)(b) of the 1967 Rules, which prohibited re-appointment fora third term. It was stated that it was also in violation of the decision of this Court in W.P. No. 9652/83, dated 24-1-1984. However, we find no substance iriany of these contentions. The tenure of office of the petitioner has already expired on 2-9-1990 on her own showing. She had no right of re-appointment even under the repealed 1967 Rules. The prohibition against re-appointment for a third term did not exist on the date of the alleged re-appointment of the 3rd respondent. Moreover, the appointment of the 3rd respondent was not to the said post, but to the post of Special Public Prosecutor as a stop-gap arrangement. For all these reasons, the contentions of the petitioner in this petition are also over-ruled.
6. In W.P. No. 853/94, the petitioner somehow manoeuvered to continue in the office of Public Prosecutor of West Godavari District by circumventing the order of this Court in W.P. No. 7540/93, dated 3-12-1993 in an intelligent manner by filing the present W.P. No. 853/94 for the same relief as claimed in the connected W.P. No. 5493/93, but with a further prayer for interim relief of maintaining the status quo in reference to the appointment of Public Prosecutor for West Godawari District, pending disposal of the petition on merits. The relevant facts may be stated in brief: The petitioner herein had earlier filed W.P. No. 7540/93, dated 3-12-1993, challenging the appointment of one Sri K. Janardhana Rao as Public Prosecutor for the Court of District and Sessions Judge, Eluru, West Godawari for a period of three years by G.O. Ms. No. 210, dated 3-6-1993. At the time, he himself was working as Special Public Prosecutor pursuant to G.O. Rt. No. 189, dated 18-4-1990, and pursuant to an order of this Court in W.P. No. 11697/91, dated 29-4-1992, as modified by order dated 2-7-92 made in W.A. No. 633/92. The said W.P. No. 7540/93 was allowed on 3-12-1993 and the appointment of the 2nd respondent therein was set aside on the ground that it was made at the time when the status quo order made in W.A. No. 633/92 was operative. The Government was also directed “to consider the matter afresh in accordance with the rules and within three months from the date of receipt of this order after calling for a fresh panel of names as per Rules.” Till then, the existing arrangement pursuant to the interim order of the Court in W.P. No. 7540/93 was directed to be continued. Now without awaiting the expiry of the said period of 3 months fixed by the Court in W.P. No. 7540/93 for fresh consideration, the petitioner herein filed the present W.P. No. 853/94 on 24-1-1994 and obtained the following interim order on 28-1-1994:
“Status quo obtaining as on today shall continue until further orders.”
This is how he is continuing to hold the office of and to function as Special Public Prosecutor, Eluru, West Godawari District. This conduct of the petitioner in securing favourable order deserves to be condemned. As a necessary consequence, his appointment to the said post of Special Public Prosecutor deserves to be terminated with immediate effect. He also deserves to be saddled with a heavy cost.
7. Now coming to the main issues, it must be placed on record that Sri B. Tarakam and Sri B.S.A. Swamy, the learned Counsel for the petitioners, with great ability and clarity of expression made their submissions before us and also tried to support their contentions by citing several authorities of the Supreme Court and those of this Court. The sheet anchor of their argument was the decision of this Court in A.P. B.Cs., S.Cs. & S.Ts. Adv. Assocn. v. Chief Secy, to Govt. (1 supra) and the provisions contained in Articles 14,16(4) and 46 of the Constitution. It was argued that the post of a Law Officer must be deemed to be a post falling under “State Service” and accordingly the rule of reservation provided in Rule 22 of the Andhra Pradesh State and Subordinate Service Rules must be held to be applicable to the said posts of Law Officers. However, this argument may not detain us, as it was considered and rejected earlier by this Court in A.P. B. Cs., S.Cs.& S. Ts. Adv. Assocn. cased supra) and we think that the view taken was correct. As for the arguments based on the provisions of Articles 14,16(4) and 46 of the Constitution, there is no denying the fact that the goal of the Constitution as set out in its preamble, is “to constitute India into a, Sovereign Socialist Secular Democratic Republic, and to secure to all its citizens: ‘Justice, social, economic and political …..’: Equality of status and of opportunity; and to promote among them all, fraternity assuring the dignity of the individual and the unity and integrity of the nation…..” Article 46, which is one of the directive principles of the State policy, commands that “the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes, shall protect them from social injustice and all forms of exploitation”. Article 14 of the Constitution enjoins the State not to deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 16(1) guarantees equality of opportunity for all citizens, in matters relating to employment or appointment to any office under the State while clause (4) of Article 16 says, “nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. As pointed out in Minerva Mills Ltd. v. Union of lndia, :
“The significance of the perception that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution. Granville Austin’s observation brings out the true position that Parts III and IV are like two wheels of a chariot, one no less important than the other. You snap one and the other will loose its efficacy. They are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves. In other words, the Indian Constitution is founded on the bed-rock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.”
Similarly as stated in State of Kerala v. N.M. Thomas, , “The concept of equality of opportunity in matters of employment is wide enough to include within its compensatory measures to put the members of the Scheduled Castes and Scheduled Tribes on par with the members of other communities which would enable them to get their share of representation in public service.” So also it cannot be gainsaid that the equality of opportunity guaranteed under Article 16(1) means effective material equality and, therefore, Article 16(4) cannot be held to mean an exception to Article 16(1). As stated by the Supreme Court, “It is only an emphatic way of putting the extent to which equality of opportunity could be carried viz., even up to the point of making reservation.” Thus, conceding everying in favour of the petitioners, it remains to be considered, whether we can invalidate repeal of an Act, or a rule under Article 309 of the Constitution on the ground that the new rules do not make any provision as to reservation of posts for the said classes of persons; or on the ground that such rules were replaced by Executive Instructions with no provision for reservation; though we concede our jurisdiction to examine the validity of any subsequent legislation, rules or Executive Instructions themselves on any valid ground.
8. We asked the learned Counsel for the petitioners, if they could cite any authority to show that any repeal of a statute or a statutory rule was ever questioned before any Court on any ground whatsoever, they fairly and frankly conceded that they could not. However, an attempt was made to demonstrate that the impugned repeal was a fraud on the Constitution. It was argued that as the Government could not do away with the rule of reservation introduced in 1967 Rules because of the directions made by the Court in A.P. B.Cs., S.Cs. & S.Ts. Adv. Assocn. (1 supra), a novel method of repealing the entire 1967 Rules to be replaced by Executive Instructions with no provision for reservation was adopted, though it was not permissible in law. Referring to Articles 166 and 167 of the Constitution, it was contended that it was obligatory on the part of the Chief Minister to have deliberations with the Council of Ministers before reaching any decision to repeal the 1967 Rules, which were framed by the Governor in exercise of his powers under the proviso to Article 309 of the Constitution. In the present case, it was pointed out, the decision was taken by the Chief Minister and the Law Minister only and not by the Council of Ministers. Accordingly the impugned Executive Instructions could not be said to be under the authority of the Governor. Reliance was placed on M.A. Rasheed v. State of Kerala, and State of Maharashtra v. C.P. Manganese Ore, .
9. It is no doubt true that a repeal and a displacement of a legislative provision by a fresh enactment can only take place after undergoing the elaborate procedure in that regard; but as held by the Supreme Court in Dattatraya v. State of Bombay, and followed in P. Joseph John v. State of Travencore-Cochin, “clauses (1) and (2) of Article 166 are directory only and non- compliance with them does not result in the order being invalid, and that in order to determine whether there is compliance with these provisions all that is necessary to be seen is whether there has been substantial compliance with those requirements.” Similar view was taken by the Supreme Court in State of U.P. v. O.P. Gupta, . In the present case we find that there was sufficient and substantial compliance with the provisions of Articles 166 and 167 of the Constitution in as much as the matter concerned was that of Law Minister, who had agreed to the repeal and displacement of 1967 Rules by the impugned Executive Instructions and the consequent notification and the order, bearing G.O.Ms. Nos. 55 and 57 respectively were specifically mentioned to be “By order and in the name of the Governor of Andhra Pradesh”. Reference to Business Rules and Secretariat Instructions, for similar reasons, needs to be over-looked as misplaced.
10. Reverting back to the argument based on the decision of this Court in AP. B.Cs., S.Cs. & S.Ts. Adv. Assacn. (1 supra), we found considerable force in the argument of the learned Counsel for the petitioners that in the light of the directions therein made, the Government could not have dispensed with the rule of reservation while displacing the 1967 Rules with the impugned Executive Instructions. As noted in paragraph 2 of this order, the direction to the Government was to decide whether to make such provision (about reservation) by an administrative order, or by making a rule under the proviso to Article 309 of the Constitution. Accordingly by making a provision in the existing 1967 Rules under the proviso to Article309, the Government was not absolved of its obligations under the said order of the Court. It was its further duty to see that that rule of reservation was followed in practice and in true spirit of the judgment. It ought to have been realised that the State was given no liberty to do away with the said rule of reservation by subsequent repeal or by displacement of the 1967 Rules with a provision for reservation by Executive Instructions without any such provision for reservation. It could have repealed the 1967 Rules and could also have issued the Executive Instructions, but with adequate safeguards for reservation as per directions of the Court in the said case. It appears, this difficulty was realised by the Government at a very late stage and accordingly an attempt was made to amend the wrong by introducing amendment to the impugned Executive Instructions by issuing G.O. Ms. No. 15 of 29-1-1994, which made a provision for giving preference to Advocates belonging to SC, ST and BC categories. The newly added para 2-C to the impugned Executive Instructions reads as follows:
“2-C. In the appointment of Law Officers preference shall be given to Advocates belonging to SC/ST and BC categories if all things being equal when compared to other candidates in the panel.”
11. In the light of what we have said above, the question arises whether we can quash the impugned repeal or the Executive Instructions:? Our definite answer is no. What we could ordinarily have done is to direct the Government to make adequate provision for reservation in the impugned Executive Instructions in pursuance of the directions made by this Court in A.P. B.Cs., S.Cs. & S.Ts. Adv. Assocn. (1 supra). However, we are not inclined to make any such direction in the present case for two reasons. The learned single Judge, who decided the case of A.P. B.Cs., S.Cs. & S.Ts. Adv. Assocn. (1 supra) conceded in unequivocal words in paragraph 34 of the judgment, “I am not unaware of the proposition that questions of policy are outside the purview of the Court and that those questions must be left for the State to decide; (vide: State of Maharashtra v. Lok Shikshan Sanstha, “, and further gave reasons as to how he decided to dictate implementation of the policy by saying, “But, as I have been at pains to emphasize, it is not the intention of this Court to dictate any policy to the State, since that policy has already been made, as also the terms in which the said policy is to be implemented. Inasmuch as no reasons are stated as to why the said policy was not being implemented by amending the relevant Rules, I found it fit to give this direction, consistent with the constitutional mandate in Article 16, and the goal stated in Article 46. It is true that, in theory. it may be open to the Government to go back upon the said policy decision: but, since the factual situation is there and since a decision has already been arrived at, I do not think it would be permissible in the circumstances of this case, for the Government to go back upon that decision.” However, we are afraid to say that while reaching to such a conclusion, the learned single Judge overlooked the fact that by making such a direction as was made in the said case, the Government was precluded from taking any contrary policy decision for all times to come. We are, therefore, of the view that the directions made by the learned single Judge in the said case, (as reproduced in paragraph 2 of this order), could not be made by him. Accordingly on the basis of these directions in the case of A.P. B.Cs., S.Cs. & S.Ts. Adv. Assocn. (1 supra) the impugned Executive Instructions cannot be declared invalid, nor any direction can be made to the Government to make amendments in the said Instructions on the said basis. Secondly, we find that in Indra Sawheny v. Union of lndia, it was said that the words “provision for the reservation of appointments or posts” in Article 16(4) do not contemplate only one form of provision namely reservation simpliciter. The words take in other forms of special provisions like preferences, concessions and exemption. Reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The Constitutional scheme and context of Articlel6(4) make it clear that larger concept of reservations takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions, like exemptions, concessions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration – the admonition of Article335. Therefore, where the State finds it necessary – for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of Backward Classes, it can extend the same under Clause (4) itself. In other words, all supplemental and ancillary provisions to ensure full availment of provisions for reservations can be provided as part of concept of reservation itself. Similarly, in a given situation, the State may think that in the case of a particular Backward Class it is not necessary to provide reservation of appointments /posts and that it would be sufficient if a certain preference or a concession is provided in their favour.” Now, therefore, the Constitutional mandate, if any, under Article 16(4) has been fulfilled by Rule 2-C introduced the impugned Executive Instructions by amendment dated 29-1-1994. But, it has to be seen whether this lesser form of special provision under Article 16(4) can be justified in place of the highest form of the special provision like that of reservation. In the facts and circumstances of the case, it has become necessary to do so in the light of the following observations in paragraph 82 of the Full Bench judgment in the case of Kranth Sangram Parishath v. Sri N. Janardhan Reddy, (F.B.) relied on by the learned counsel for the petitioners:
“The Directive Principle in Article 46 obligates the State to protect the educational and economic interests of the weaker Sections. The Special Officer for Scheduled Castes and Scheduled Tribes appointed by the President under Article 338 of the Constitution is charged with the duty of investigating all matters relating to the safeguards provided for these sections. Although persons belonging to weaker sections have no constitutionally enforceable right to approach this Court for a direction to the State to effect reservations, when once such reservations were provided by the State they could not be terminated in the absence of any valid reasons like cessation of the need for reservations on the ground that considerable social and educational advancement has been achieved and the disparities between them and the advanced sections have disappeared. No such plea was raised by the State before us. On the other hand the plea of the State is that with a view to providing more reservations Section 3-A was brought into being. Inasmuch as Section 3-A in its actual application wipes out to a great extent the existing reservations in favour of Scheduled Castes and Scheduled Tribes and Backward Classes without any valid reasons, we are of the view that the impugned provision is arbitrary on this score.”
12. It has to be remembered that in the said Kranth Sangram Parishath (11 supra), the Full Bench was considering the constitutional validity of certain provisions of a State Act and of the rules thereunder framed. It did not have before it any question of directing the State for making adequate provisions for reservation in any statutory Act, or Rules, or instructions of the Government. On the contrary, it was specifically noted that the persons belonging to weaker sections have no constitutionally enforceable right to approach the Court for a direction to the State to effect reservations. The further observation that “when once such reservations were provided by the State they could not be terminated in the absence of any valid reasons” was considered as one of the circumstances for invalidating the provisions of Section 3-A of the Act under consideration. In this context, we have to see if there was valid reason for dispensing with the rule of reservation in matters of appointment of Law Officers. As pointed out in the counter-affidavit filed in W.P. No. 5464/1993, the Government found various practical difficulties incontinuing the rule of reservation in the matter of appointment of Law Officers and also realised that there was no fundamental right to rule of reservation, in so far as the Law Officers were concerned, it decided to dispense with the rule of reservation. To quote the words of the counter-affidavit filed by the Deputy Law Secretary:-
“3. In reply to paras 3 to 9 of the affidavit I submit that all the allegations made herein are denied. There is no truth in the allegations that the instructions in G.O. Ms. No. 57, Law, dated 16-3-1990 were issued only to subserve the interests of particular caste people. The appointment of Law Officers are made after taking into account the educational qualifications, standing at the Bar, the nature of practice, the volume of work, age, antecedents and the quality of advocacy of the concerned advocates and after considering the relative merits of the advocates in the advocates in the panels forwarded by the District Collector in consultation with the concerned District Judge in the case of Courts subordinate to the High Court and after considering the relative merits of the advocates in the panels forwarded by the Advocate-General in the case of the High Court of Andhra Pradesh, Andhra Pradesh Administrative Tribunal, Land Grabbing Tribunal, Corporations, Public Undertakings and Local Authorities etc., whenever suitable and eligible advocates belonging to S.C., S.T., and B.Cs. are recommended by the concerned authorities, the Government have been appointing the advocates of the said categories as Law Officers though there are no instructions to implement the rule of reservation. An Advocate should not be appointed as Law Officer simply because he belongs to B.C., S.C., or S.T. The competence of the Advocate to serve as Law Officer should be considered. Persons known for their competence alone can be considered for appointment for posts in professional fields. It is submitted that the posts of Law Officers are not regular civil posts in as much as they are only tenure posts for a specific period. They are also not transferable posts. The post of Law Officer is confined to a particular place and the appointment is on the basis of the recommendations made either by the District Collector in consultation with the concerned District Judge or by the Advocate General of Andhra Pradesh as submitted above. Since the rules framed under the Advocates Act prohibit the advocates from applying for any Law Officer post, it is difficult for the recommending authority to know the social status of the Advocates and consequently implementing the rule of reservation also becomes impracticable. In case a suitable advocate of the community for which a Law Officer post is reserved at particular place is not available, it is difficult to implement the rule of reservation. The exercise on the part of the appointing authority to know the social status of the advocates for this purpose amounts to asking the advocates to put in an application for appointment of the Law Officers against the provisions of the Advocates Act. It may indirectly amount to forcing the appointing authority to do what is prohibited by law. It is further submitted that there is no fundamental right to rule of reservation so far as Law Officers are concerned. Further it is submitted that it is difficult to follow the rotation system envisaged by the rule of reservation which is applicable to the regular civil posts in as much as the posts of Law Officers are tenure posts being non-transferable, the implementation of rule becomes difficult in case there are no suitable advocates of the reserved categories to fill up the panel. The allegation that the instructions in G.O.Ms. No. 57, Law, dated 16-3-1990 were issued to harm prejudice the interests of weaker sections is totally denied. It is submitted that no person has any legal right to the appointment to the office of a Law Officer under the Law. It is the prerogative of the state of Andhra Pradesh to appoint eligible, qualified and suitable advocates as Law Officers to safeguard and defend the interests of the State on the concerned Courts of any District or the High Court. No rights are conferred on any individual either by the Constitution or any other law, to claim appointment to the post of Law Officer as a matter of right on the grounds of Principles of reservation. It is also submitted that the impugned G.O.Ms. No. 57, was issued on 16-3-1990 the writ petitions have allowed 31 /2 years to lapse without lifting a finger and have only now invoked the jurisdiction of this Hon’ble Court. This inordinate delay constitutes laches and is in itself a sufficient ground to dismiss the writ petition.”
In indra Sawhney v. Union of India (10 supra), the majority view of the Supreme Court was:
“While on Article335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/institutions, in specialities and super-specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable.”
We find that the post of a Law Officer is also one of such posts as considered by the Supreme Court in the said case to be inappropriate for making a provision for reservation. In the light of these facts, the provision now made in the impugned Executive Instructions for giving preferential treatement to persons belonging to B.C., S.C., or S.T. class cannot be said to be inadequate for satisfying the requirement of Article 16(4) of the Constitution, if any.
13. The fathers of the Indian Constitution were well nigh aware of the dangers of giving all pervading powers to any of the three wings of the Constitution; Executive, Legislature and Judiciary, and, therefore, they were meticulous in defining the limits of their respective powers, so as to avoid any possible trespass over the field of others. Accordingly we cannot direct the Legislature to legislate on any matter, howsoever important it may be, or the Executive to take any particular type of policy decision on any subject whatsoever, though we have powers to strike down any legislation, or executive action on the ground of violation of any of the fundamental rights guaranteed by the Constitution.
14. In the light of what we have said above, our conclusion is that we cannot quash the repeal of the 1967 Rules, nor can quash the Executive Instructions on the ground that they do not contain the rule of reservation, as was introduced in 1967 Rules.
15. For the foregoing reasons, we find no merit in these writ petitions and accordingly all of them are hereby dismissed. In so far as costs are concerned, we make no order as to costs in all but one W.P. No. 853/94. For the reasons stated in paragraph 6 of this order, we direct that the appointment of the petitioner in W.P. No. 853/94 to the post of Special Public Prosecutor, Eluru, West Godawari District, shall stand terminated with immediate effect. He shall further pay a cost of Rs. 1,000/- to the respondent No. 1, the State of Andhra Pradesh.
ORDER
P. Venkatarama Reddi, J.
16. Respectfully I concur with the conclusions reached by my learned brother K.M. Agarwal,) and agree substantially with the reasoning adopted by him. Though my line of thinking is not very different from that of my learned brother, I would like to project my thoughts on some aspects in my own perspective. Hence this separate order.
17. Referring to the decision in A.P.B.Cs., S.Cs. & S.Ts. Advocates Association v. Chief Secretary to Govt. (1 supra), Agarwal, J. has pointed out that this Court ought not to have granted a direction to make a provision for reservation. My learned brother has taken this view obviously for the reason that Article 16(4) is an enabling provision and the Court cannot direct the State to legislate or to make rules in relation to a policy matter. The learned Judge who decided the aforementioned case was quite conscious of the limitations in this behalf, as is evident from the following remarks at paragraph 31:
“All that repeatedly stated is that, the issuance of an amendment to the statutory Rules, in terms of the said decision, is still under consideration. This is not a case where the Court is directing the enforcement of a directive principle; this is not even a case where the Court is forcing a policy decision upon the Government. It is also not a case where the factual situation calling for the application of the rule of reservation in doubt.”
But the direction given in the judgment could, in my view, be justified on the peculiar facts of that case the foremost amongst which was that the State Cabinet had already taken a decision on 11-6-1983 to provide for reservations in Law Officers posts. The rationale and justification for such direction- extraordinary as it was, is discernible from the following words of Jeevan Reddy, J. at paragraph 34:
“But, as I have been at pains to emphasise, it is not the intention of this Court to dictate any policy to the State, since that policy has already been made, as also the terms in which the said policy is to be implemented. Inasmuch as no reasons are stated as to why the said policy was not being implemented by amending the relevant Rules, I found it fit to give this direction, consistent with the constitutional mandate in Article 16 and the goal stated in Article 46. It is true that, in theory, it may be open to the Government to go back upon the said policy decision, but, since the factual situation is there and since a decision has already been arrived at, I do not think it would be permissible in the circumstances of this case, for the Government to go back upon that decision.”
I do not understand that judgment as placing an embargo on the State’s power to reconsider and reverse the policy decision for good reasons. It cannot be said that the judgment rendered by Jeevan Reddy, J. mandates the reservation policy to continue “for all time to come” – to borrow the expression of Agarwal, J. If, in the light of experience subsequently gained or on further deliberations, the Government considers that the implementation of the rule of reservation is fraught with practical difficulties and that a rule of preference instead of a rule of reservation is more appropriate, I do not think that anything said in that judgment would place a fetter on the Government against the repeal of the previous rules. Moreover, as rightly contended by the learned Advocate- General that that decision was rendered at a time when the recruitment and conditions of service of Law Officers were governed by the rules framed under Article 309 which, by necessary implication, means that the State Government virtually wanted to treat the Law Officers as its employees. But that concept has undergone a change with the decision taken by the Government to exclude them from the purview of Article309 and to frame executive instructions to govern their recruitment and terms of engagement. This step has been considered to be more appropriate by the Government, as the file placed before us shows. Such a treatment of the Law Officers who hold office for a tenure and work on part- time basis has been sanctified, though post-facto, by the precedential authority, emanating from the Apex Court in a recent judgment in State of U.P. v. U.P. State Law Officers Association, (Paragraph 6). Whether the replacement of 1967 Rules by executive instructions is bona fide or it amounts to fraud on power, is a matter already dealt with by Agarwal, J. and I do not wish to elaborate further.
18. I would like to say a few words about Para 2-C and Para 3-B introduced by G.O. Ms. No. 15 dated 29-1-1994. The said Paras enjoin that in the appointment of Law Officers, preference shall be given to Advocates belonging to SC/ST/BC Categories, if all things remain equal, when compared to other candidates in the panel. Para 2-C applies to Law Officers in the High Court and the A.P. Administrative Tribunal, and Para 3-B governs the appointments in the District and Subordinate Courts. Though I do not regard this provision as an effective substitute for the rule of reservation, I think it would go a long way in achieving the constitutional goal enshrined in Article 46 and in fulfilling the mandate of Articles 16(1) and 335 of the Constitution. The Government’s policy to give adequate representation to the lawyers of socially and educationally Backward Classes is clearly reflected in these provisions. Having found that it would be impracticable and inappropriate to earmark certain percentage of posts, the Government struck a via-media which, if properly implemented, is capable of achieving the constitutional goal even in this sphere. Apprehensions were expressed by the learned Counsel that this provision gives a large play for discretion and provides a leverage to circumvent the desired objective. I do not think so. Whether it be a reservation or preference, the possibility of misuse or improper exercise of power cannot be ruled out. But merely on account of this possibility, the rule of preference cannot be regarded worthless. For instance, even if the rule of reservation is there, the criterion of suitability to handle the job cannot be dispensed with, especially when the Law Officers’ posts are not such as are to be filled up by a competitive examination and that necessarily imports an element of subjective assessment.
19. It is relevant to notice that the panel of Law Officers has to be prepared by the District Collector inconsultation with the District Judge in the case of District and Subordinate Courts and in the case of High Court and the A.P. Administrative Tribunal, this task is entrusted to a constitutional functionary – viz., Advocate General. I have no reason to think that these consultative agencies will not act in keeping with the avowed policy of the Government to give adequate representation to the S.C./S.T./B.C lawyers. In my view, it is implicit in the very rule of preference that before preparing a panel, there should be active application of mind on the part of the consultative agencies and the Government with a view to find qualified and suitable advocates belonging to S.C./S.T. and Backward Classes. It must be ensured that suitable and sincere lawyers belonging to these classes are not left out of consideration in the process of selection of Law Officers. This type of approach together with the training programmes launched by the State Government will, I hope, result in the appointment of adequate number of them in due course.
20. I agree that these writ petitions ought to be dismissed.