Telangana High Court
Insurance Regulatory And Development ... vs Abhijit Nair on 12 February, 2024
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT APPEAL Nos.998 AND 1025 OF 2023
COMMON JUDGMENT:(Per Hon'ble Sri Justice Abhinand Kumar Shavili) Since the issue involved in both these Writ Appeals is one and the same, both these Writ Appeals are being disposed of by way of this common judgment.
2. Aggrieved by the order, dated 09.08.2023, passed in W.P.No.40829 of 2014 by a learned Single Judge of this Court, the Insurance Regulatory and Development Authority and its Senior Joint Director (Gen.), who are the respondents in the said Writ Petition, filed W.A.No.998 of 2023 and the petitioner in the said Writ Petition filed W.A.No.1025 of 2023.
3. Heard Sri P. Gangaiah Naidu, learned Senior Counsel representing Sri M.V. Suresh, learned counsel for the appellants in W.A.No.998 of 2023 and respondent Nos.1 and 2 in W.A.No.1025 of 2023 and Sri Srikanth Kaveti, learned counsel for the appellant in W.A.No.1025 of 2023 and respondent in W.A.No.998 of 2023.
4. For the sake of convenience, the facts and the submissions made in W.A.No.998 of 2023 are hereunder discussed.
2 AKS,J & RRN,J W.A.Nos.998 & 1025 of 2023
5. It is the case of the appellants that they have issued recruitment notification, dated 23.10.2010, to fill up various posts, including Assistant Director (Actuary). In all, five posts of Assistant Director (Actuary) were notified. Out of the said five posts, one post was reserved for ST candidate, one post was reserved for OBC candidate and three posts were earmarked under unreserved category. The minimum qualification required for appointment to the said post is that the applicant must pass five papers of Institute of Actuaries of India or equivalent, with desirable experience of two years. The respondent has responded to the said notification and the written examination was conducted on 13.02.2011 and the interviews were conducted on 21.03.2011. The selections were finalized and appointment orders were issued in favour of the successful candidates on 09.05.2011. While so, nearly after three years i.e. in the year 2014, the respondent has approached this Court by filing the subject W.P.No.40829 of 2014 contending that the appellants have rejected his case for appointment to the post of Assistant Director (Actuary), in spite of the fact that he has secured 4th rank in the selections. The learned Single Judge allowed the subject Writ Petition by directing the appellants to appoint the respondent as Assistant Director (Actuary) as a fresh candidate in the existing vacancy, if any, and if no vacancy exists as on that 3 AKS,J & RRN,J W.A.Nos.998 & 1025 of 2023 date, he shall be appointed as and when the vacancy arises, without appreciating any of the contentions raised by the appellants.
6. Learned Senior Counsel appearing for the appellants had contended that the case of the respondent was not considered for appointment to the post of Assistant Director (Actuary) on the ground that he was not having two years of desirable experience. The learned Single Judge erroneously came to a conclusion that two years experience as set out in the notification, dated 23.10.2010, is not mandatory, but only directory. Wherever the qualification is prescribed as desirable, it should be understood that it is mandatory and the appellants, who are the employers, have every right to choose the person having desirable experience. Learned Senior Counsel further contended that the respondent had contended before the learned Single Judge that less meritorious candidate was appointed as Assistant Director (Actuary), ignoring the case of the respondent. When the respondent pleaded that less meritorious candidate than that of him was appointed, then he should have impleaded the said person as a party respondent in the subject Writ Petition. Learned Senior Counsel further contended that the learned Single Judge has directed the appellants to appoint the respondent as Assistant Director (Actuary) as a fresh candidate in the existing vacancy, if any, and if there is no existing vacancy as on that date, 4 AKS,J & RRN,J W.A.Nos.998 & 1025 of 2023 then the respondent shall be appointed as and when the vacancy arises. Learned Senior Counsel further contended that the number of posts of Assistant Director (Actuary) will be determined based upon the cadre strength. Moreover, as per the Recruitment Rules in force, as on today, the post of Assistant Director (Actuary) is required to be filled up only by way of promotion and therefore, the question of considering the case of respondent for appointment to the post of Assistant Director (Actuary) in the existing vacancy or future vacancy would not arise.
7. Learned Senior Counsel appearing for the appellants had further contended that the learned Single Judge ought to have dismissed the subject Writ Petition on the ground of delay and laches, as admittedly, the notification was issued on 23.10.2010 and the entire selection process has come to an end on 09.05.2011, by which time the respondent was aware that he was not selected, and nearly after three years from the date of finalization of the selections and issuing appointment orders, the respondent has chosen to file the subject Writ Petition. Therefore, the learned Single Judge ought to have dismissed the subject Writ Petition on the ground of delay and laches, apart from non-joining the affected persons i.e. selected candidates, who secured less marks than that of the respondent. Therefore, appropriate orders be passed in the Writ Appeal by 5 AKS,J & RRN,J W.A.Nos.998 & 1025 of 2023 setting aside the impugned order, dated 09.08.2023, and allow the Writ Appeal.
8. On the other hand, learned counsel for the respondent had contended that challenging the impugned order, dated 09.08.2023, only to the extent of directing the appellants to appoint the respondent as a fresh candidate in the existing vacancy or in the future vacancy, instead of from the date on which the selections were finalized, the respondent filed W.A.No.1025 of 2023. Learned counsel further contended that the learned Single Judge rightly came to a conclusion that the desirable experience is only mandatory, but not directory. As admittedly the respondent has secured 4th rank and five posts were advertised, the appellants ought to have selected the respondent. Learned counsel further contended that the respondent obtained information under the Right to Information Act from the appellants and the appellants have provided information to the respondent vide proceedings, dated 16.01.2014, and as per Clause No.9 of the said letter, the appellants have informed the respondent that the desirable experience was not relaxed in favour of anyone, except one candidate, who had one year of experience. A perusal of the said information would disclose that the appellants have power to relax the desirable experience. When they had the power to relax the desirable experience, the 6 AKS,J & RRN,J W.A.Nos.998 & 1025 of 2023 appellants ought to have relaxed the desirable experience even in favour of the respondent also. Therefore, the learned Single Judge was justified in coming to a conclusion that the desirable experience is not mandatory, but only directory and in allowing the subject Writ Petition in favour of the respondent, but the learned Single Judge ought to have directed the appellants to appoint the respondent from the date of appointment of the candidates selected through the notification, dated 23.10.2010. Therefore, appropriate orders be passed by directing the appellants to appoint the respondent from the date of appointment of the candidates selected to the post of Assistant Director (Actuary) through the notification, dated 23.10.2010.
9. This Court, having considered the rival submissions made by the learned counsel for the parties, is of the considered view that to some extent, the learned Single Judge may be justified in coming to a conclusion that the desirable experience is not mandatory, but, however, a perusal of the record discloses that the respondent has not impleaded the selected candidates, more so, when the respondent contended before the learned Single Judge that he has secured 4th rank and in spite of securing 4th rank, a less meritorious candidate than that of him was appointed. If such was the case of the respondent, then the respondent ought to have impleaded the 7 AKS,J & RRN,J W.A.Nos.998 & 1025 of 2023 person, who has secured less marks than that of him, as a party respondent to the subject Writ Petition. A perusal of the record further discloses that the subject Writ Petition was filed by the respondent nearly after three years from the date of finalization of the selections. Therefore, the learned Single Judge ought not to have allowed the subject Writ Petition by directing the appellants to appoint the respondent in the existing vacancy or in the future vacancy. This Court was apprised by the learned Senior Counsel appearing for the appellants that there was an amendment to the recruitment Rules and as per the recruitment Rules, which are in force as on today, the post of Assistant Director (Actuary) is required to be filled up only by way of promotion, but not by direct recruitment. The learned Single Judge has given a direction to consider the case of the respondent in the existing vacancy or in the future vacancy, which would definitely be violating the recruitment Rules. Therefore, the learned Single Judge could not have given such a direction without referring to the recruitment Rules. Moreover, the appellants have pleaded before the learned Single Judge that the post of Assistant Director (Actuary) is to be filled up by way of promotion, but not by way of direct recruitment. The learned Single Judge could not have given a direction to the appellants to appoint the respondent as a fresh candidate in the existing vacancy or in the future vacancy, without there being any 8 AKS,J & RRN,J W.A.Nos.998 & 1025 of 2023 material as to whether there are any sanctioned posts of Assistant Director (Actuary) or not, as per the cadre strength. Therefore, the impugned order, dated 09.08.2023, is liable to be set aside on the ground that the selected candidates were not impleaded as party respondents in the subject Writ Petition and that the subject Writ Petition was filed belatedly i.e. after three years from the date of finalization of the selections.
10. For the reasons stated above, W.A.No.998 of 2023 is liable to be allowed and accordingly, the same is allowed and the order, dated 09.08.2023, passed in W.P.No.40829 of 2014 by the learned Single Judge of this Court, is set aside. W.A.No.1025 of 2023 is liable to be dismissed and accordingly, the same is dismissed. There shall be no order as to costs.
Miscellaneous Applications, if any, pending in these appeals, shall stand closed.
_________________________ ABHINAND KUMAR SHAVILI, J ____________________________ NAMAVARAPU RAJESHWAR RAO, J Date: 12.02.2024.
MD