Andhra HC (Pre-Telangana)
P.Sreedhar vs Counsel For The on 27 July, 2016
Author: A. Ramalingeswara Rao
Bench: A. Ramalingeswara Rao
HONBLE SRI JUSTICE A. RAMALINGESWARA RAO
Writ Petition No. 25997 of 2015
27-07-2016
P.Sreedhar Petitioner
State of Telangana, Rep. by its Principal Secretary, General Administration
(SC-A) Department, Secretariat Buildings, Hyderabad and another. Respondents
Counsel for the Petitioner: Sri A.K. Jayaprakash Rao
Counsel for the Respondents: Sri A. Rama Rao
<Gist :
>Head Note:
? Cases Referred:
1.(2008) 7 SCC 11
2.2015(3) ALT 628 (DB)
3.1985(3) SCC 721
4.2015(3) ALT 628(DB)
HONBLE SRI JUSTICE A. RAMALINGESWARA RAO
Writ Petition No. 25997 of 2015
Order:
The first respondent-APSRTC issued a notification for recruitment
to the post of Shramik on 23.12.2011. The notification was for 36 posts
of Kadapa Region. The petitioner submitted his application for the said
post. He is having certificate of ITI in Diesel Mechanic Trade, which is the
required qualification for the said post. Besides the same, he studied up
to Intermediate and undergone Apprenticeship Training with M/s. Sri
Lakshmi Narasimha Automobiles and passed National Trade Certificate
during August 1998 to July 1999. He also completed trade certificate in
Computer Operation and Programme Assistance. He belongs to BC-B
Community. He was aged 29 years 11 months and 11 days and thus he is
below the age of 30 years. In response to his application a call letter was
sent to him on 04.02.2015. He attended the interview and produced all
the certificates. He was provisionally selected for the said post and his
name was shown at Sl.No.30. He was informed on 10.03.2015 that he
was selected and was directed to undergo medical examination.
Accordingly, he had undergone medical examination. He was sent for
training by addressing letter dated 30.03.2015 to the Principal, Zonal Staff
Training College, APSRTC, Kurnool. He was also sent to the Depot
Manager, APSRTC, Rajampet for attending Induction Training at Zonal
Workshop, Kadapa, from 28.04.2015 to 30.04.2015. He also underwent
training from 06.05.2015 to 18.05.2015 in the office of the Deputy Chief
Mechanical Engineer, Kadapa. However, the second respondent issued
office order dated 28.07.2015 appointing 35 employees deleting the name
of the petitioner without assigning any reason. In view of his selection
and training he left the job of Lab Assistant in Mechanical Engineering
Department of Srinivasa Institute of Technology and Science, but by
virtue of the action of the second respondent he lost the said job as well
as the present job. He further states that no reasons were assigned for
denying the employment even though he was selected. He submitted his
representation on 03.08.2015 and when there was no response he filed
the present Writ Petition.
2. A counter affidavit is filed on behalf of the respondents stating that
the Chief Manager (Hyderabad) issued a letter on 24.12.2011 sanctioning
36 posts of Shramiks in Kadapa Region and accordingly the process for
recruitment was initiated. The qualification mentioned in the Notification
is ITI with Diesel Mechanic Trade. The selection was made giving
different marks for qualification, possessing National Apprenticeship
Certificate (NAC) and weightage for age. Though the possession of
National Apprenticeship Certificate is not mandatory, 10 marks were
awarded for those who have possessed the said certificate. During the
selection process the petitioner produced two National Trade Certificates,
one as Diesel Mechanic and the other as Computer Operator and
Programming Assistant. While verifying the certificates, the selection
committee, by mistake, treated one of the National Trade Certificates as
National Apprenticeship Certificate and erroneously awarded 10 marks
earmarked for National Apprenticeship Certificate. The petitioner was
awarded 85.60 marks due to the said mistake and the cut-off marks for
selection was 79.80 marks. The petitioner was sent for training along
with others pending verification of the antecedents and genuineness of
educational, technical qualification certificates, caste certificate etc. At
that stage, one K. Mallikarjuna of Rayachoty submitted an application
under the Right to Information Act requesting for information on the
marks obtained by BC-B candidates who were selected for the post of
Shramik. While compiling the information in response to the application
under the Right to Information Act, it was noticed that the petitioner was
not having National Apprenticeship Certificate. The petitioner vide letter
dated 29.05.2015 also admitted that he is not having National
Apprenticeship Certificate. If the 10 marks awarded for National
Apprenticeship Certificate on mistake are deleted, the petitioner would get
only 75.60 marks which is below the cut-off marks of 79.80 marks.
Hence, he became ineligible for selection. Accordingly, the letters of
appointment were issued to 35 candidates omitting the petitioner. A
counseling session was held on 28.07.2015 where the petitioner attended
and he was informed orally that his selection was kept in abeyance as
there was error in awarding marks. In the notification it was clearly
stated that the candidates have to enclose the following certificates along
with the application i.e., (1) Date of Birth Certificate, (2) Caste Certificate,
(3) ITI Certificate, (4) National Apprenticeship Certificate, (5) Educational
Certificate, (6) Residential Certificate etc. The petitioner did not enclose
the National Apprenticeship Certificate.
3. The petitioner filed a reply affidavit stating that the notification
does not contain the requirement of possession of National Apprenticeship
Certificate except the qualification of ITI with Diesel Mechanic Trade.
Hence the reliance of the respondents on National Apprenticeship
Certificate for selection was bad. The reply affidavit further states that
since the procedure was not mentioned in the notification, the procedure
adopted by the respondents is contrary to law. In respect of four persons
though they did not possess National Apprenticeship Certificate, they were
selected.
4. Learned counsel for the petitioner, by relying on the decisions in
Hemani Malhotra v. High Court of Delhi and P. Murali Mohana
Reddy v. State of Andhra Pradesh, Law (LA & J SC.F) Department,
rep. by its Chief Secretary , submitted that in the absence of
disclosure of the procedure in the notification, the award of marks under
various parameters is bad in law. He further submitted that the
respondents cannot adopt a different procedure other than that was
mentioned in the notification.
5. Learned Standing Counsel for the respondents-APSRTC submitted
that in the absence of the National Apprenticeship Certificate (NAC) the
petitioner was not selected as he did not get the required cut-off marks.
He further submitted that though the petitioner was selected based on
mistaken award of marks, the mistake was later on detected and the
letter of appointment was not given to the petitioner after noticing the
mistake.
6. In the light of the above rival contentions the point that arises for
consideration is whether the procedure adopted by the respondents while
selecting the candidates and disqualifying the petitioner is valid.
7. The Notification was issued for filling up of 36 posts of Shramiks in
Kadapa Region stipulating the requisite qualification as ITI Diesel
Mechanic Trade. However, six (6) documents were asked to be enclosed
including the National Apprenticeship Certificate (NAC). As on the date of
recruitment, the Circular No.PD-55/2010, dated 21.10.2010, stipulating
the method of selection and qualification prescribed for the post was in
vogue. As per the said Circular the different marks allocated are as
follows.
(1) Marks obtained in ITI to be weighted down to : 50 marks
(2) For undergoing Apprenticeship : 30 marks
(3) Weightage marks : 20 marks
_________
TOTAL: 100
marks
_________
The weightage marks were calculated based on the date of completion of
19 years of age by 1st July of the recruitment year or date of passing ITI
whichever is later subject to a maximum of 20 marks, allocating one mark
for each year of completion. The said circular was modified by Circular
No.PD-17/2014, dated 26.05.2014, as per which the marks were revised
by allocating 70 marks to ITI, 10 marks for possessing National
Apprenticeship Certificate and 20 marks to age. Thus, there is change in
allocation of marks to National Apprenticeship Certificate from 30 to 10.
The notification was issued on 23.12.2011 and the selected list was
published in March 2015. Though the respondents should have applied
the Circular PD-55/2010 which was in vogue as on the date of notification,
even assuming that the circular is applicable, applied the latter circular
dated 26.05.2014. Thus the application of latter circular to the earlier
notification is bad. This Court is of the opinion that the allocation of
marks for different parameters without indicating the said process in the
notification is bad in law. The process adopted is also irregular as it is
contrary to the notification. The notification prescribes the qualification of
ITI in Diesel Mechanic Trade as the only eligibility qualification and it
does not provide for compulsory possession of National Apprenticeship
Certificate. Hence, the preparation of merit list based on the possession
or otherwise of National Apprenticeship Certificate is irregular. There
cannot be a different procedure other than the procedure indicated in the
notification. This was clearly held in a decision reported in Umesh
Chandra Shukla v. Union of India , which was followed by this Court
in P. Murali Mohan Reddy v. State of Andhra Pradesh .
Accordingly, it is held that the award of marks under different heads and
preparation of merit list on that basis without informing the candidates
through the advertisement issued at the time of inviting applications is
contrary to law.
8. However, coming to the relief to be granted to the petitioner, it is
noticed that out of 36 candidates, who were selected, four (4) candidates
including the petitioner were selected under the category BC-B. The
number of posts reserved for each category were not notified at the time
of initial recruitment and this is another irregularity in the selection
process. But, since the same is not challenged, this Court is not inclined
to examine that point in detail. However, the three other candidates
selected under BC-B category possessed National Apprenticeship
Certificate as could be seen from the merit list produced before this Court.
If we omit the National Apprenticeship Certificate from consideration and
10 marks allocated towards the same, the marks obtained by the
candidates are as follows.
Sl.No.
Call Letter
No.
Name of the
Candidate
Marks
obtained
Selected/not selected
1.
407
P. Sreedhar
75.6
Included in merit list but not
appointed
2.
82
P. Gurunadham
71.0
Selected
3.
33
B. Venkata Subba
Rayudu
70.80
Selected
4.
341
G. Venkateswarlu
80.80
Not selected
5.
161
T.Venkata Narayana
69.80
Selected
6.
391
K. Mallikarjuna
69.30
Not selected
7.
98
U.Rama Narayana
69.20
Not selected
8.
865
B.Venkata Narayana
68.90
Not selected
There are five other candidates belonging to BC-B Community whose
names found place in the selection list but not selected and their names
are omitted for the purpose of present consideration.
9. Now the authorities have not selected the petitioner consequent to
the notice of mistake on the application of K. Mallikarjuna and did not
select the petitioner though he got 75.60 marks after omitting the
National Apprenticeship Certificate, but selected T. Venkata Narayana by
taking National Apprenticeship Certificate and calculated the marks as
79.80. I have already held that National Apprenticeship Certificate is not
the essential qualification and by omitting 10 marks allocated to it,
T. Venkata Narayana would get only 69.80 marks, but in between there is
another candidate by name G. Venkateswarlu, whose call letter number is
341, who did not possess National Apprenticeship Certificate, but he got
80.80 marks and he was not selected solely on the ground that he did not
possess National Apprenticeship Certificate. It is clear from the above
that the respondents have taken the National Apprenticeship Certificate as
an essential and requisite qualification and disqualified G. Venkateswarlu
even though he got 80.80 marks, but selected T. Venkata Narayana who
got 79.80 marks only on the ground that the latter possessed National
Apprenticeship Certificate, ignoring the merit. Even if some weightage is
given to National Apprenticeship Certificate, the selection of T. Venkata
Narayana in preference to G. Venkateswarlu is clearly illegal. After
noticing the mistake, if any, consequent to the information sought under
the Right to Information Act, the respondents should have rectified their
mistake and should not have stopped by not selecting the petitioner but
should have given appointment to the said G. Venkateswarlu who got
80.80 marks in the merit list. Since the said G. Venkateswarlu is not
before this Court, this Court is not in a position to grant any relief to him,
but however it is open to the authorities to issue a letter of appointment
to him, since he is more meritorious candidate than T. Venkata Narayana.
10. So far as the petitioner is concerned, no relief can be claimed by
the petitioner in the absence of making the said T. Venkata Narayana as a
party to the present Writ Petition, though the latter got lesser marks than
the petitioner and granting relief in favour of the petitioner would affect
him. The petitioner having got the requisite information by the date of
filing the Writ Petition should have done the exercise of comparing the
merit of the candidates and impleaded the said T. Venkata Narayana as a
party respondent to the present Writ Petition. Having failed in that
attempt, no relief can be granted in favour of the petitioner, though this
Court noticed that the selection procedure adopted by the respondents is
totally illegal, as it would affect 35 selected candidates who have been
working for the last one year. Consequently, the Writ Petition is liable to
be dismissed and is, accordingly, dismissed. There shall be no order as to
costs.
11. As a sequel thereto, the miscellaneous petitions, if any, pending in
this Writ Petition shall stand closed.
________________________
A.RAMALINGESWARA RAO, J
Date: 27th July 2016