Andhra HC (Pre-Telangana)
S. Madhusudana Reddy And Ors. vs State Of A.P. And Ors. on 23 February, 1999
Equivalent citations: 1999(3)ALD80, 1999(2)ALT787
ORDER
1. In these batch of writ petitions the important questions that arise for consideration are, whether the eligibility criterion for making appointment to a particular post has to be prescribed by the appointing authority, in this case, common cadre authority or a selection committee constituted for selecting the candidates and whether the eligibility criterion has to be prescribed with reference to the date of vacancies or with reference to the date of interview when the post is sought to be filled up at a latter date due to administrative exigencies. Another substantial question that arise for consideration is that when the employees drawn from two sources have been integrated and declared as one cadre, whether it is open to the appointing authority to fill up the vacancies that remained unfilled before the merger has taken place. The facts are not very much disputed.
2. In the year 1985 Act 7/64 of Andhra Pradesh Co-operative Societies Act (for short "the Act") was amended by Act 21/1985 and Section 116-A of the Act as it stood prior to amendment was modified whereimder the Registrar was empowered to constitute the common cadre for the posts mentioned thereunder including Assistant General Managers of Andhra Pradesh State Co-operative Bank (for short "APCOB"). As we are not concerned with other posts they are not specifically adverted to in these writ petitions. Under Section 116(2) of the Act the Registrar is authorised to frame regulations with regard to classification and methods of recruitment, conditions of service, pay and allowances and discipline and conduct of the pfficers for whom common cadres are to be constituted. This Amending Act came into force w.e.f. 25-4-1985. In exercise of this power the Registrar seems to have framed regulations in his Proceedings No.RC. No.83438/76/ C-l(A), dated 12-5-5978 for categories 1, 2 and 3 employees of the Co-operative Central Banks (for short "CCBs") and for corresponding posts of APCOB created by the Registrar under Section 116-A of the Act. But those regulations were kept in abeyance in Proceedings No.Rc. No.81916/ 78/C-1 (A), dated 9-8-1978. Subsequently, the Registrar has decided to implement the common cadre regulations in the first phase for the category of first class officers (i.e.,) Dy. General Managers of CCBs and Asst. General Managers of APCOB with some modifications and also constituted an appointment committee to exercise powers of appointment, transfer and disciplinary control in respect of that category. In proceedings RC. No.50665/81-C, dated 18-5-1981. In para (7) of this proceedings it is made clear that notwithstanding anything contained in their bye-laws, that the CCBs and the APCOB shall not have any power to deal with the said categories of employees except to the extent the cadre regulations permit. In para (8) it is stated that the orders will come into force from 20-5-1981. Regulation 2 deals with definitions. 2(iii) "Registrar" means Registrar of Co-operative Societies, A.P., Hyderabad. 2 (vii) "Regulations" means the common cadre regulations as approved by the Registrar of Co-operative Societies under Section 116-A of the Act. 2 (ix) "Apex Bank" means Andhra Pradesh State Co-operative Bank Limited. 2 (x) "cadre employee" means (i) General Managers of CCBs and Dy. General Managers of Apex Bank classified as class I officers and; (ii) Dy. General Managers of Co-operative Central Banks and Assistant General Managers of A.P. State Co-operative Bank classified as class-II officers. Regulation 3 deals with constitution of cadre committee and under Regulation 3(6) the Registrar may issue such directions as may be considered necessary to the cadre committee which shall be binding on it. Regulation 5 deals with constitution of common cadres. Under Regulation 5(1)(b) class II officers means Dy. General Managers of CCBs and Assistant General Managers of APCOB. 5(2) the Selection Committee consisting of the Chairman of the APCOB, Registrar Co-operative Societies or his nominees and the member secretary of the cadre committee shall be competent to select and recommend to cadre committee for appointment to the cadre posts from out of the feeder posts given below. Under 5.2 (b) for the cadre posts of Dy. General Managers of Co-op Central Banks and Asst. General managers of APCOB the feeder posts shall be Asst. General Managers of CCBs and Managers of APCOB under Regulation 5.3. The Selection Committee shall make selections either by conducting written test or oral interview or both and the committee shall evolve guidelines of selection prior to holding of written or oral test. The common cadre regulations as such did not prescribe any eligibility criterion for selecting candidates from the feeder posts to fill up the Dy. General Managers in CCBs and Asst. General Managers in APCOB or as a matter of fact even to any class one officers' appointment. As the common cadre regulations are silent with regard to eligibility criterion, the Selection Committee started prescribing eligibility criterion. But the efforts made by the management led to Court litigation and the appointmenls made by the Bank in 1992 were set aside by this Court in the case of A.V.V. Satyanarayana Murthy v. A.P. State Co-op. Bank Ltd., 1994 (1) An.W.R. 416.
3. It is the case of all the parties that at this stage the Registrar imposed ban on filling up vacancies that have arisen both in A.P. Co-op. Bank as well as A.P Coop. Central Agricultural Development Bank (APCCADB) pending amalgamation of both the Banks. Subsequently by Amending Act 14 of 1994 APCCADB was merged in A.P. Co-op. Bank with effect from 30-4-1994 and the service of the employees working in that Bank were transferred to APCOB.
4. While the above writ petition is pending, in 1994 the Selection Committee tried to fill up some more vacancies that have arisen prior to 1982 by getting the ban released and the same was communicated to all, in Proceeding NO.F35/706/5531, dated 17-3-1994 by the Secretary. Under this policy the eligibility criterion prescribed was that the employee shall put in minimum period of five years of service by the end of the preceding month in which the interview will be held irrespective of his confirmation in the feeder posts. In other words, just before the merger of the two banks the management of the APCOB tried to fill up the existing vacancies in the short term stream by getting relaxation of the ban. But the appointment committee could not give appointments to the selected candidates because of the stay orders of this Court. Thereafter the Managing Director of the APCOB went on pursuing the matters to fill up the vacancies that have arisen prior to 31-3-1994. In his letter F.35/F.119/A/13, dated 28-5-1995 the Secretary, Cadre authority addressed a letter to the Commissioner for Co-operation stating that there were 32 clear vacancies in the posts of class two officers as on November, 1992 and though the Selection Committee could draw a panel of 39 candidates, they could not be given appointments because of the stay orders of this Court. The letter further says that the matter was discussed in detail at a personal level between the highest policy making body and it is decided to fill up vacancies that were existing at that time slot of interview in the month of November, December 1992. Stating so he sought for the permission of the Commissioner to fill up 32 posts of the common cadre authority from among the S.T. stream. Responding to the said letter the Commissioner in his proceedings No.207447/95/C-1, dated 6-7-1995 accorded permission to fill up posts as proposed by the Secretary in his letter dated 28-6-1995 subject to the following conditions which are : (a) posts as vacant against the sanctioned strength be filled up; (b) rules regarding selection be strictly followed; (c) posts upto the sanctioned strength or as per M.V.S. Prasad's reports whichever is less be filled up till the Government finally accepts the report and (d) only 1992 level vacancies be filled up which could not be done earlier.
5. From this it is evident that the Commissioner has given permission to the Secretary, common cadre authority to fill up the vacancies that have arisen upto 1992 if they are within the sanctioned strength. Having obtained permission the Member Secretary sent call letters in proceedings No.F/35/703/4156, dated 23-7-1996. In this call letter while informing the candidates to appear for an interview, it is made clear that the promotion policy for class two officers as enunciated by the Selection Committee in 1994 shall be followed for effecting promotions. The Visakhapatnam unit of APCOB has filed Writ Petition No.14978/1996. Though questioning the promotion policy of the year 1992, they were infact questioning the action of the Bank in trying to fill up the vacancies in 1996. This Court while admitting the writ petition, by order dated 30-7-1996 observed that any promotions made shall be subject to the result of the writ petition. After completion of the process of selection, 32 officers were given promotions either as Assistant General Managers at the Apex level or as Dy. General Managers at District level. But in their appointment orders it was made very clear that their appointments are subject to the result of this writ petition. Having not contended with the appointments made, the Secretary common cadre, authority again started writing letters to the Commissioner stating that the vacancies that have arisen upto 30-4-1994 in the short term stream should also be filled up. The last of the series seems to be the letter No.F/80/15, dated 13-11-1996 whereunder the Secretary sought permission to fill up 29 more posts in class two officers which have arisen upto 30-4-1994 the day on which the services of the employees working at two banks at the apex level were integrated. The Commissioner in his proceedings RC. No.207/4/95/C-l, dated 3-1-1997 gave permission to fill up the posts remained vacant upto 30-4-1994 against the sanctioned strength. It is useful to extract the said letter itself, which reads as under :
"GOVERNMENT OF ANDHRA PRADESH CO-OPERATIVE DEPARTMENT From To The Commissioner The Managing Director Co-operation and A.P. State Co-op. Bank Registrar of Co-op. Hyderabad. Societies A.P., Hyd.
Lr. No.20747/95/C-1, dated 3-1-1997 Sir, Sub :-Cadre Authority - Filling up of the posts of Cadre-II - Reg.
Reg :--R's Lr.20747/95/C-1, dt. 6-7-1995.
Your Lr. Cadre/FBO/778, dt. 27-9- ] 996 1 invite a reference to the correspondence cited. Permission is hereby accorded to APCOB, Hyderabad to fill up the posts of Cadre-II officers as proposed in your letter 2nd cited including the post of Sri AVSN Murthy, Manager as ordered by Hon'ble High Court in WP No.2053 of 1996 subject to the following conditions :
(a) 29 posts reported as vacant or a lesser number of posts remaining vacant as on 30-4-1996 against sanctioned strength be filled up;
(b) Rules regarding selection be strictly followed;
(e) Posts as upto the sanctioned strength and existing and vacancies prior to the date of merger of APCCADB with APCOB may be alone be filled up;
(d) Vacancies as on 30-4-1994 only shall be filled up; and
(e) All Court judgments or observations in the issue shall be scrupulously followed.
Yours faithfully, Sd/-N. Prabhakar Rao For Commissioner and Registrar."
Thereafter, for the reasons best known to the Managing Director he did not choose to fill up these vacancies immediately after obtaining the permission and in the meantime the Government was contemplating to issue certain clarifications relating to integration of services and ultimately G.O. Ms. No.338, dated 11-12-1998 was issued by the Government, specifying the guidelines for effecting integration of two services. Perhaps, having coming to know that the G.O. is in offing, the Managing Director hurriedly called for the meeting of the Selection Committee at 4.00 p.m. on 5-11-1998 and in that meeting the Selection Committee decided to fill up these 29 posts of class two officers and this lime the Selection Committee has taken a decision that the period of five years has to be reckoned as on 30-4-1994. It is useful to extract the relevant minutes of the meeting dated 5-11-1998.
"Similarly, in respect of selection of Class-11 posts of Cadre Authority i.e., Dy. General Managers of District Co-operative Central Banks/Asst. General Managers of APCOB, it has been decided to call such officers of feeder posts i.e., Asst General Managers of District Co-operative Central Banks/Managers of APCOB as per C.C. Regulation No.5.2(b) who completed 5 years of service as on 30-4-1994 and still continuing in service. The other criteria for selection of Class-11 officers shall be as per the Selection Committee proceedings dated 3-3-1994."
6. From this it is seen that the Selection Committee once again changed the eligibility criterion to select the candidates. This time, as per their decision, one must complete 5 years of service in the feeder posts as on 30-4-1994 the day on which the integration of service of both the banks have taken place.
7. Questioning this policy some of the affected employees who initially belonged to long term stream filed Writ Petition No.33265/1998. Their principal contention is that though the vacancies might have arisen prior to the integration of the services of the employees of the two banks, as they remained unfilled the question of filling those vacancies with the employees working in the short term stream does not arise. By taking such a decision their claims for promotions have been adversely affected and it amounts to violation of Article 14 of the Constitution of India. Another Writ Petition No.33 177/ 1998 was filed by four affected employees in the short term stream stating that had the respondent-Bank followed the previous policy they would have come up for selection as they have already put in more than five years of service in the feeder category.
8. To complete ihe narration of facts, I must also refer to two more important events that have taken place in the Cooperative movement in the State of Andhra Pradesh. The Act was amended by Act 1/1987 and the Primary Co-op. Credit Agricultural Development Banks working in various parts of the State were-merged in their respective District Central Cooperative Banks to see that the long term credit as well as the short term credit are disbursed the agriculturists through one source and the staff working in the Primary Agricultural Development Banks were integrated and merged with the staff working in District Central Co-operative Banks. All the Counsels appearing for the contesting parties conceded that the integration at district level has taken place. Thereafter the Government by Act 14/1994 merged both the Banks working at the State level i.e., Apex level, w.e.f. 30-4-1994. It came to light that in this Bank peculiarly the Selection Committee started prescribing the eligibility criterion for selecting candidates from the feeder posts to fill up the promotional posts. Though the respondent-Bank did not place any document to show the promotion policy that was in vogue prior to 1992, the officers that are present in the Court assisting their Counsel stated that prior to 1992 the Bank used to insist that one must have atleast two years service in the feeder category for considering his claims for promotion to these posts and that the promotion policy as approved by the Selection Committee used to be communicated to all the concerned by the Bank.
9. From the above narration of facts it is seen that as the common cadre regulations did not prescribe on the eligibility criterion, the Selection Committee constituted for effecting promotions went on fixing the eligibility criterion at their whims and fancies. The Selection Committee went on prescribing the eligibility criterion for considering the claims of the employees for promotion to the posts of class II officers. For 1992 selection, the Selection Committee has fixed a minimum period of five years of service in the feeder posts to consider the claims of the employees for class two officers posts. In 1994 it prescribed that one must complete a period of five years by the end of proceeding month in which the interviews will be held irrespective of his confirmation in the feeder posts. The same has been followed in 1996 also but coming to 1998 the Selection Committee at its meeting on 5-11-1998 has taken a decision to send call letters to those employees who have completed five years of service as on 30-4-1994 and still continuing in service. Admittedly, the proceedings referred supra clearly indicate that the respondent-Bank is trying to fill up the vacancies that has arisen prior to 30-4-1994 and prior to integration of the services of the two Banks in the cooperative sector at the Apex level.
10. In the light of this factual background whether the prescription of minimum experience in the feeder post for appointment to any post is within the purview of the appointing authority or the Selection Committee constituted for the filling up the vacancies. From the decisions taken by the Selection Committee constituted for filling up the vacancies from time to time makes it very clear that an employee who has completed five years of service in the feeder category alone shall be called for interview and the process of selection has nothing to do with the prescription of minimum experience required to be put in by the individual before his case is considered for appointment. In other words, the perquisite qualification to consider the claim of an employee for class two posts is that he must have served in the feeder category, atleast for a minimum period of five years. A candidate who has not put in five years of service, cannot be called for interview and he cannot be subjected to the process of selection as he lacks the basic minimum qualification for appointment. Hence to my mind any qualification required to be fulfilled by an individual seeking appointment to a particular post can be prescribed only by the appointing authority or the authority nominated for that purpose and they cannot change the same from time to time as evidenced in this case. In fact, Section 116(2) of the Act deals with the power of making regulations concerning classification of posts, method of recruitment, conditions of service, pay and allowance and discipline and conduct of the officers and the same was entrusted to the Registrar of Co-operative Societies. I have no manner of doubt that prescription of five years service as qualification falls within the purview of method of recruitment and conditions of service. As the statute conferred this power specifically on the Registrar the power has to be exercised by him alone but not some one else.
11. Sri Amancherla Krishna Murthy, supported by Sri E. Manohar, Sri Krishnaiah and Sri V.S.R, Anjaneyulu, vehemently contended that as the common cadre regulations are silent and under Regulation 5(3) the Selection Committee constituted for the purpose was conferred with the power of prescription of eligibility criteria and as such the Selection Committee is well within the limits in prescribing the five years of service as prerequisite qualification to consider the claims of the employees for appointment as class two officers. In support of their contention they placed strong reliance on the judgment of this Court in A.V.V.S. Murthy v. A.P. State Co-op. Bank, 1994 (1) An. W.R. 416. I have gone through that judgment. The question that arose for consideration in that case was that whether the guidelines for purpose of selections have to be approved by the Selection Committee prior to issuance of call letters for written or oral test to the candidates or they can be finalised after issuance of call letters. I have already extracted Regulation 5(3). Even if it is repetition the same is reproduced in the light of vehemence with which the Counsel argued their case. According to Regulation 5(3) the Selection Committee shall make selections either by conducting written test or oral interview or both and the committee shall evolve guidelines of selection prior to holding of written or oral tests. The meaning of this regulation is nothing more than empowering the Selection Committee to decide whether it would like to make selection by way of written test or oral test or both and in that connection it can evolve its own guidelines for making selections. But that guidelines should be finalised before actually holding the interviews. In the light of the contention of the Counsels it is better to extract the proceedings of the Selection Committee dated 22-8-1992/21-10-1992 which reads as under :
"Promotion Policy of Class-11 Officers of Common Cadre Approved by the Selection Committee a! its Meeting Held on 22-8-1992/21-10-1992.
ALLOTMENT OF MARKS I. Education qualifications :
Marks Max. Marks
1.
General :
8(a) Graduation 6
(b) Post Graduation or any other professional qualification like Medicine, Engg.,B.Sc.(Agril) B.V.Sc.8
2. Technical :
8(a) CAII B - Part - I 3
(b) CAII B - Part - II 5
3. Trainings :
6(a) PGDCRS/HDC 4
(b) IDC/DCBM/LAW 2
(c) Any other training of one week and above @ one mark for each such training subject to max. of three marks 3 II.
Confidential Reports/Appraisal Reports 16 The allocation of marks for performance of duties/confidential reports will be based on assessment of the following qualities :
(i) Job knowledge
(ii) Efficiency in work
(iii) Integrity
(iv) Power of supervision
(v) Drafting III.
Service 22 1-1/2 marks for each completed year of service in feeder post (subject to a max. of 22 marks). The service rendered in the feeder posts will be reckoned upto the end cf August, 1992. Completion of six months of service and above shall be treated as full year of service and marks shall be awarded accordingly. Fraction of less than 6 months of service will be ignored.
IV.
External evaluation 40
1. Group discussion/group task 20
2. Interview 20 (to be decided by the Selection Committee on the basis of general knowledge, knowledge of the subject, expression and personality) Total 100 From the marks obtained out of 100 as above, marks are to be deducted for the punishments awarded to the officers to the officers in the feeder posts during the past three years as under subject to a maximum of 10 marks :
(a) censure/fine (for each punishment) 1 mark
(b) stoppage of increment without cumulative effect 2 marks
(c) stoppage of increment with cumulative effect (for each increment) 2 marks
(d) Reduction in seniority/reversion to lower post under disciplinary grounds only during the period of 3 years 10 marks Note :- The Asst. General Managers of Coop. Central Banks and Managers of APCOB are eligible to be considered for selection. The employees shall have put in a minimum period of seivice of atleast five years irrespective of his confirmation in the feeder post."
12. From this it is seen that the total marks for evaluating the performance of the candidates was fixed at 100 and how those marks to be allotted, both minimum and maximum are specified and a look at the above proceeding it reveals that the employees' ability to hold the post is being assessed on the basis of the educational qualification, technical qualification, training undergone by him, confidential reports, service rendered by him, external evaluation and he also carries minus marks for the punishments received. This is what is called process of selection and no marks were allotted for the minimum qualifying service in the feeder category. Hence," fixing of five years of service as a prerequisite qualification cannot be considered as a process of selection and that is purely within the purview of the appointing authority or the persons nominated for that purpose as the same being minimum requirement. One must possess, to qualify himself for interview.... As in this case merely the common cadre regulations are absent on that aspect, the Selection Committee would not have undertaken the task of prescribing the qualifications instead they would have brought it to the notice of the common cadre authority whether the non prescription of minimum qualification is an omission or intentional. If the common cadre authority does not want to prescribe any minimum qualification, the Selection Committee cannot on its own prescribe the minimum qualification or take the task or prescribing the qualifications that is required to be fulfilled by the employee to get a call letter for the purpose of selection. Hence, 1 do not find any substance in the contention" of these Counsel that in the absence of prescription of prerequisite qualification in the common cadre regulations, the Selection Committee is empowered to prescribe the minimum qualifications and the contention is accordingly rejected. The contention of the Counsel can be rejected on the other ground also. The statute delegated the power of framing the regulations concerning the qualification, method of recruitment and conditions of service on the Registrar of Co-operative Societies. A delegate cannot further delegate his functions to some other authority and as such the action of the Registrar is not permissible in law. On this ground also the contention of the Counsels has no legs to stand. Even assuming without admitting for argument sake, if the Selection Committee is having the power to prescribe the minimum basic qualification required, it cannot be altered at the whims and fancies of the members of the Selection Committee as evidenced in this case. During 1992 selections, the Selection Committee prescribed a minimum period of five years service in the feeder category. But the proceedings of the Selection Committee did not throw any light whether they are filling up the posts that have arisen during the year 1992 or much earlier and whether that five years period has reckoned with reference to any cutoff date in that particular year or with reference to the date on vacancy arose or with reference to the interviews. The rule is very silent on all these aspects. Coming to 1994 selections the Selection Committee has taken the stand that this period of minimum five years has to be completed by the employee one month preceding to the interview, but from the correspondence it is seen that they tried to fill up the vacancies that were left unfilled from 1987 to 1992. If a candidate is going to e selected for the year 1992 with reference to five years of service qualification, one month before to the interview, it is very clear that the candidate is not qualified when the day on which actually the vacancies has arisen. In other words, the Selection Committee is trying to prescribe a qualification to be acquired by a candidate long after the vacancy has arisen. In that case it cannot be called as a prerequisite qualification but it will be something else. The same policy they have followed in 1996 and the fallacy of the Selection Committee is clearly exposed in this selection. Firstly, they tried to fill up the vacancies upto 1992 with candidates who completed five years of service one month prior to the date of interview in the year 1996. Secondly, the feeder posts for class two officers are not only the managers working in the Apex Bank but also the Assistant General Managers working in CCBs. As per the minutes of the Selection Committee these posts have to be filled in from the short term stream. But the fact remains that in the year 1987 the employees of the APCCADB were merged with the employees working in APCOB and their services were integrated. The question of ignoring the employees of Primary Agricultural Development Banks whose services were transferred to the District Cooperative Banks who have completed five years of service by 1996 or even who has put in more years of service does not arise. The intention in insisting that one has to serve in the feeder post for a minimum number of years is that the experience gained by him in discharge of his duties in the feeder posts will help him in undertaking the scope of work in promotional post and it will be of help to him in discharging the onerous duties attached to the promotional post. Practically by adopting this procedure the Selection Committee has placed the cart before the horse.
13. Now coming to the 1998 policy, the Selection Committee wants to reckon the five years with the last date on which the short term stream has come to an end and they want to fill up the vacancies that left unfilled till that date (i.e.,) the vacancies that have arisen between 1992 and 1994. kaving applied the principle of completion of five years of service with reference to the date of interview for the previous batch, why and how the Selection Committee changed the prerequisite qualification at this stage is not known and the counters filed by them did not throw any light on this aspect. Had they followed the same rule, perhaps the employees whose services were transferred to APCOB might have also stood a fair chance of getting selection as they have completed five years of service in the bank after merger. In 1996 selections they have considered those employees working in short term stream, who have put in five years of service one month preceding to the interview and now by trying to reckon the qualification of five years with effect from 30-4-1994 employees working in the short term stream who have completed five years of service by the year 1998 were deprived of getting selection. In other words while undue favour was shown by the Selection Committee on one set of employees and others were subjected to hostile discriminations and as such an action is violative of Article 14 of the Constitution of India.
14. Even assuming for a moment that the Selection Committee is having power to prescribe the eligibility criterion it cannot be changed from time to time, month to month or year to year. On this ground also the change of eligibility criterion by the Selection Committee cannot be upheld and the same is liable to be set aside.
15. Lastly, learned Counsel strenuously contended that none of the Counsels appearing for the petitioners did ever question the promotion policy and as such the Court is estopped from declaring the promotion policy as illegal. I have no hesitation to reject the contention. It rs true that the Counsels did not specifically attack the prescription of five years qualification by the Selection Committee as impermissible, but they have questioned the change in the policy of prescription of qualification. Further when an illegality has been noticed by this Court, it is the bounden duty of this Court to set at right at the earliest possible time than allow the things to drift away. Further way back in 1952 the Supreme Court has taken a view that the Courts are expected to render rant justice than technical justice. The Court is always empowered to mould the relief in a given set of circumstances to uphold the Majesty of Law. Hence I am well within my powers to declare the action of the Selection Committee in prescribing the eligibility criteria which is not within its purview as illegal and the same has to be set aside and it is accordingly set aside.
16. Coming to the second issue whether one has to put in five years of service with reference to the date of vacancy or with reference to the date of interview, the issue is no more res Integra. The Supreme Court in Dr. Umakant Saran v. State of Bihar and others, 1973 (1) SLR, held that for appointment to a higher post or promotion one must have the requisite qualification on the day when the vacancy has arisen but not with reference to the notification issued to fill up the vacancies. Even in an unreported judgment of this Court in WA No.231/1997 in the case of V. Radhakrishna Murthy v. H. Anjaneyulu, this Court while interpreting Rule 4(1) of the A.P. State Subordinate Service Rules held that one must have the qualification with reference to the cutoff date of that particular year In which the vacancy has arisen and even if the posts are filled up at a much later date due to exigency of administrative exigencies and the claims of those people who acquired the minimum qualifications with reference to the cut off date alone has to be considered but not others. Many more unreported judgments of this Court are available on this aspect. Hence the question of prescribing five years service with reference to the date of interview cannot be sustained in law and holding interview has nothing to do with the vacancies that have arisen in a particular year.
17. As I have already discussed supra, if the qualification prescribed by the Selection Committee is upheld the persons who have no qualification on the date when the vacancies have arisen will be getting promotions which is opposed to the prescription of minimum prerequisite qualifications to consider the claims of an employee for higher promotions. The respondent bank has produced two statements before me one is source of vacancies during the period from 1-1-1987 to 30-4-1994 and the other is list of eligible candidates for 1996 selections and the service put in by them (herein after referred to as 'first list and second list'). From the first list it is seen that as on 1-1-1987 23 vacancies are available in class two officers posts. The senior most person to get promotion for this post, as per second list is one Mr. V. Subba Raju, who was promoted to the feeder category on 25-10-1984. If five years of service qualification is made applicable to him with reference to the date of vacancy, he is not qualified, as he has not completed the five years of service as on 1-1-1987. Any number of examples can be given from the list that was furnished by the Bank.
18. Coming to 1998 policy the Bank intends to fill up vacancies that has arisen between 1992 to 1994 and the Selection Committee wants to consider the claims of those persons who have completed five years of service in the feeder category prior to 30-4-1994. The effect of this would be that an employee who completed 5 years of service by 30-4-1994 can be considered for appointment in 1992 vacancy or 1993 vacancy though he has not put in five years of service as on the date of the vacancy. '''
19. For these reasons the action of the Selection Committee in prescribing the eligibility criteria, in the policy of the year 1994 followed in 1996 as well as in 1998 cannot be upheld. Any eligibility criteria can be prescribed only with reference to cut off date of a particular year to enable the concerned authority to fill up the vacancies that are going to arise in that particular year as in the case of State Government employees or the date on which the vacancies arise. Except these two permissible methods no other method can be evolved to fix the eligibility criteria. On this ground also the action of the respondent Bank is unsustainable in law.
20. The third issue that falls for consideration is that whether the vacancies that have arisen prior to 30-4-1994 in the respective apex bank has to be filled up with the employees working in those banks or as the bank is now trying to fill tip these vacancies, can they consider the claims of all those who have fulfilled the requisite qualifications prescribed by the common cadre authority. On this aspect also the law is very clear; whether to fill up the vacancies or not is purely within the purview of the appointing authority. As the two strings are different and distinct till the merger is effected if the bank wants to consider the claims of the employees in their respective streams they can do so as such a course is permissible in law. But the same principle shall have to be applied to short term as well as long term stream and they cannot be treated in a different manner. So it is for the bank to take a decision on this aspect and it does not fall under the purview of the Court. If the bank wants to consider the claims of all the eligible candidate from both the steams it can do so. In fact the bank imposed ban on filling up the vacancies pending finalisation of the proposal of merger of these two services. As the merger is over it is for the bank to take a decision.
21. Nextly, from the first list that is supplied the source of vacancies during 1-1-1987 to 30-4-1994, the bank has shown that there are 23 vacancies as on 1-1-1987, in the short term steam. But nowehere in the correspondence these posts were shown as vacant. In fact, this Court repeatedly asked the bank to furnish the list of vacancies. But no such information was made available. If those 23 vacancies are removed from 32 vacancies, that are sought to be filled now the bank is left with only 6 vacancies that have arisen between 1992 to 1994. As the bank has not furnished full information, I keep this issue open. But if the bank intends to fill up these 23 vacancies existing as on 1-1-1987 they must display the vacancy position with full information (i.e.,) how these 23 vacancies have arisen with reference to the date and the circumstances under which the vacancies have arisen so that the aggrieved employees can file their objections if any. If the bank is particular in filling up these 23 vacancies, a decision should be taken before filling up these vacancies and then follow the guidelines set out in this judgment to fill up the vacancies.
22. In the result, WP No. 14978/96 is allowed and the promotions given in 1996 are set aside as the entire selection process is vitiated by illegalities. WP Nos.332657 98 and 33177/98 are disposed of by giving guidelines for effecting promotions to the posts of Class II Officers in the respondent Bank. But, in the circumstances there will be no order as to costs.