Important point
When in a writ petition there was no challenge to constitutional validity of the provision of a statute, issue could not be gone into by High Court while deciding the other contentions points in the writ.

Headnote:Constitution of India—Article 226 —10% reservation to children/wards of serving/retired/deceased personnel of police and like forces in posts of Police Constables, Grade II—High Court held State policy was invalid—State appeal —There was no challenge to the constitutional validity of policy—Respondent, who was not successful in the test had filed application before Central Administrative Tribunal—Tribunal found that applicant had not qualified and was not fit for selection—There was no challenge by applicant before Tribunal to the validity of policy because applicant himself wanted to avail benefit under the policy—High Court dismissed the writ filed by respondent and held at same time that preference which was being sought for on ground of descent was prohibited—It was not open to High Court to dismiss the application on additional ground that policy decision was unconstitutional—Impugned part of the judgment was liable to be set aside.
Held : We need not go into the question about the applicability of Yogendra Pal’s case (supra) on the sole ground that there was no challenge to the policy decision in the petition filed before the Tribunal or before the High Court. Therefore, it was not open to the High Court to dismiss the application on the additional ground that the policy decision was unconstitutional, overlooking the fact that the respondent- applicant was seeking relief under the policy decision. We have, therefore, not expressed any opinion on the validity or otherwise of the policy decision providing for 10% special quota to a particular group of candidates. We set aside that part of the order of the High Court which invalidates the policy decision. Other part of the order which deals with lack of merits stands affirmed as there is no challenge to it by the respondent. (Para 14)

Judgment

Arijit Pasayat, J.—Leave granted.

2. The Government of Tamil Nadu questions legality of the judgment rendered by the Madras High Court holding that the policy of the State Government in providing 10% special quota to the children/wards of serving/retired/deceased personnel of police and like forces is invalid.

3. A brief reference to the factual issue would suffice.

4. The Tamil Nadu Service Recruitment Board (in short ‘Recruitment Board’) published a Notification in several local dailies on 5.3.2000 calling for applications filling up 1155 posts of Police Constables, Grade II. In the Notification the Board had stated that 10% of the posts were reserved for legal heirs of serving personnel, for ministerial staff and also for legal heirs of those persons who had been invalidated on medical grounds. The respondent (hereinafter referred to as the ‘applicant’) filed an Original Application before the Central Administrative Tribunal (in short the ‘Tribunal’). The respondent-applicant was not found successful as he had not faired well in the written test as well as the physical test. He was, therefore, not held to be qualified for selection.

5. The Tribunal held that since the applicant had not qualified he was not fit for selection. He had failed to get selected because his performance was not satisfactory. It was further held that he was not entitled for any preferential treatment. It is to be noted that there was no challenge by the applicant before the Tribunal to validity of the policy because he himself wanted to avail benefits under the policy. The respondent-applicant filed a Writ Petition before the Madras High Court. A learned Single Judge of the Madras High Court dismissed the writ petition on the ground that writ petitioner had not come out successful in the tests. But at the same time held that the preference which was being sought for on the ground of descent was prohibited by Article 16(2) of the Constitution of India, 1950 (in short the ‘Constitution’). It was held by relying on a decision of this Court in Yogendra Pal Singh v. Union of India (AIR 1987 SC 1015) that there cannot be any reservation on the basis of descent. It was held that the reasoning of the Tribunal that reservation provided for wards of police personnel is unconstitutional was in order. It was further noted that though the reservation provided by the State had been applied in the case of many persons wrongly, it would not be proper to invalidate the appointments already made. Though it was urged by learned counsel for the State that the constitutional validity of concerned policy was not in issue, the High Court felt that in view of the declaration of law by this Court the matter could be taken note of by it.

6. Mr. K.K. Venugopal, learned senior counsel appearing for the State submitted that there was no challenge to the policy by anybody. In fact the respondent-applicant was relying on the policy. The Tribunal came to the conclusion that the respondent-applicant before it was not entitled for any preferential treatment. It did not express any opinion on the constitutional validity of the provision. The High Court erroneously declared the policy to be constitutionally invalid.

7. Though the service of notice had been duly effected, there is no appearance on behalf of the respondent.

8. We find that there was no challenge to the constitutional validity of the policy providing for 10% special quota to the children/wards of serving/retired/deceased personnel of police and like forces. The relevant portion of the Government Order dated 10.9.2001 containing the policy is as follows :

“The Government also direct that 10% quota be provided for dependents of the serving police personnel and the wards/dependents of retired, deceased and medically invalidated police personnel so as to boost up the morale and strengthen the loyalty of the force. In case, it is not possible to fill up the sports quota of 10%, the Government permit the filling up of the gap b

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Judicial Analysis

SupremeToday

2005 Supreme(SC) 364

Important pointWhen in a writ petition there was no challenge to constitutional validity of the provision of a statute, issue could not be gone into by High Court while deciding the other contentions points in the writ.

Cases Referred (3)

Judicial Analysis

Important point
When in a writ petition there was no challenge to constitutional validity of the provision of a statute, issue could not be gone into by High Court while deciding the other contentions points in the writ.