Andhra Pradesh High Court - Amravati
P. Brahma Sai vs The State Of Andhra Pradesh, on 18 July, 2019
*THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
*THE HON'BLE SRI JUSTICE M.VENKATA RAMANA
+WRIT PETITION No.45816 OF 2018
%18.07.2019
Between:
# P.Brahma Sai,
S/o Koteswara Rao,
Age:31 years, Occ:Unemployee,
R/o D.No.4-2-119/6, V.B.Colony, Bapatla,
Guntur District & 3 others.. ... Petitioners
And
$ The State of Andhra Pradesh,
Rep.by its Ex-Officio Secretary to Government,
Horticulture & Sericulture Department,
Secretariat, Velagapudi,
Guntur District & 11 others.
.. Respondents
! COUNSEL FOR THE PETITIONERS: Sri SRINBIVASA RAO MADIRAJU
^ COUNSEL FOR THE RESPONDENTS: G.P. FOR AGRICULTURE
< Gist:
>Head Note
? Cases referred
1. 2013 Law Suit (Supreme Court) 151.
2. 2006 Law Suit (Kerala) 378.
3. 2004 Law Suit (A.P.) 419.
4. The order of this Court in W.P.No.5107 of 2015, dated
13.11.2015.
5. (2010) 2 SCC 637
2 AVSS,J & MVR,J
W.P.No.45816
W.P.No.45816 of 2018
2018
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE M.VENKATA RAMANA
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals.
3. Whether Their ladyship/Lordship wish Yes/No
to see the fair copy of the Judgment?
3 AVSS,J & MVR,J
W.P.No.45816
W.P.No.45816 of 2018
2018
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE M.VENKATA RAMANA
WRIT PETITION No.45816 OF 2018
ORDER:(per Hon'ble Sri Justice A.V.Sesha Sai) Heard learned counsel for the petitioners and the learned Government Pleader for Agriculture, appearing for the respondent Nos.1 and 2, apart from perusing the entire material available on record.
2. All the petitioners in this Writ Petition are un-employees and some of them are graduates and some are post-graduates in Horticulture. The Commissioner of Horticulture, State of Andhra Pradesh-second respondent herein issued a notification bearing No.Estt.I(1)AP/20/2016, dated 01.09.2016, inviting applications for filling up 25 posts of Horticulture Officers in the State. The posts of Horticulture Officers are governed by the A.P.Horticulture Service Rules, notified vide G.O.Ms.No.776 Food & Agriculture (Agrl.II) Department, dated 15.09.1989. Petitioners herein offered their candidature by making applications in response to the said notification, dated 01.09.2016. Vide circular bearing No.Estt.I (1)140/2013, dated 09.12.2016, second respondent herein, strictly adhering to the provisions of law and the 4 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 instructions issued from time to time, prepared a provisional select list for 22 posts and invited objections by 31.12.2016.
First respondent-State Government issued an order, vide G.O.Ms.No.33 Agriculture & Cooperation (H&S) Department, dated 17.05.2017, agreeing with the request made by the second respondent-Commissioner to entrust 36 unfilled posts and also future vacancies to the APPSC. First respondent herein resorted to such action, pursuant to a letter, dated 20.01.2017, addressed by the Commissioner of Horticulture, State of Andhra Pradesh, Chuttugunta, Guntur-second respondent herein. Earlier, vide G.O.Ms.No.239 Food and Agriculture (Agrl.V) Department, dated 07.04.1989, the State Government-first respondent herein had withdrawn the subject posts from the purview of the APPSC. The State Government-first respondent herein, vide Web notification, dated 22.05.2017, cancelled the earlier notification, dated 01.09.2016, in response to which petitioners herein applied for the posts on the ground that the first respondent entrusted the selection process to the APPSC, vide G.O.Ms.No.33, Agriculture & Cooperation (HORTI and SERI) Department, dated 17.05.2017. These circumstances compelled the applicants/petitioners herein to approach the Andhra Pradesh Administrative Tribunal (hereinafter referred 5 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 to as 'the Tribunal'), under Section 19 of the Administrative Tribunals Act, 1985, by filing O.A.No.1507 of 2017. The Tribunal, by way of the final order, dated 30.11.2018, dismissed the said Original Application, which prompted the applicants/petitioners herein to invoke the jurisdiction of this Court, by way of the present Writ Petition, under Article 226 of the Constitution of India.
3. It is contended by the learned counsel for the applicants-petitioners herein that the order passed by the Tribunal, which is impugned in the present Writ Petition, is highly erroneous, contrary to law and violative of Articles 14 and 16 of the Constitution of India. In elaboration, it is further contended by the learned counsel that, having undertaken the entire process of selection and completing the same, by issuing a provisional select list, there is absolutely no justification on the part of the respondent authorities in cancelling the notification, issued on 01.09.2016, on the ground that the State Government decided to entrust the selection process to the APPSC on the basis of the letter addressed by the second respondent herein on 20.01.2017. It is the further submission of the learned counsel that the said action, on the part of the respondents, is also in contravention of the settled principle of law that 'the rules of 6 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 game should not be changed in the middle'. In support of his contentions and submissions, learned counsel for the petitioners placed reliance on the following judgments:
6. 2013 Law Suit (Supreme Court) 151.
7. 2006 Law Suit (Kerala) 378.
8. 2004 Law Suit (A.P.) 419.
9. The order of this Court in W.P.No.5107 of 2015, dated 13.11.2015.
4. Per contra, it is vehemently contended by the learned Government Pleader, while supporting the order passed by the Tribunal, that, after elaborately and meticulously considering the entire material available on record, the Tribunal passed the questioned order, confirming the action impugned in the Original Application and, in the absence of any infirmity and error in the said order, the questioned order is not amenable for any judicial review, under Article 226 of the Constitution of India. In elaboration, it is further submitted by the learned Government Pleader that, only with the sole intention of protecting the merit, the respondent authorities resorted to the impugned action. It is the further submission of the learned Government Pleader that, even as per the notification, dated 01.09.2016, the Commissioner of Horticulture is competent and has a right to modify, to increase or reduce or cancel any part or all the vacancies, which are notified, at any time, without any notice and that
7 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 the petitioners herein, having applied, in terms of the said notification, cannot find fault with the conditions of the said notification. It is also the submission of the learned Government Pleader that the Commissioner of Horticulture-
second respondent herein, after elaborately taking into consideration the pros and cons of the selection process and the guidelines prescribed in the notification, addressed a letter to the State Government-first respondent herein, recommending the entrustment of recruitment to the APPSC, and the State Government, accepting the said recommendation, decided to entrust the recruitment process to the APPSC vide G.O.Ms.No.33, dated 17.06.2017. It is also the submission of the learned Government Pleader that the petitioners herein have no absolute right to claim the employment simply on the basis of their inclusion in the select list.
5. To bolster his submissions and contentions, learned Government Pleader placed reliance on the judgment of the Honourable Apex Court in RAKHI RAY AND OTHERS v.
HIGH COURT OF DELHI AND OTHERS1.
1(2010) 2 SCC 637 8 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018
6. In the above backdrop, now the issue that emerges for consideration of this Court is:
"Whether the order passed by the Tribunal, confirming the cancellation of selection resorted to by the respondents, is sustainable and tenable and whether the same warrants any interference of this Court under Article 226 of the Constitution of India?.
7. The information available before this Court manifestly discloses that the State Government earlier, on 07.04.1999, had withdrawn the posts of Horticulture Officer/Agricultural Officer from the purview of the APPSC, for the reasons mentioned therein. It is not in dispute that, by virtue of a notification, dated 01.09.2016, 25 posts of Horticulture Officers were notified by the respondents. Clause (3) of the said notification deals with the qualification and mode of selection. It is also not in dispute that, pursuant to the said notification and submission of the applications by the petitioners, along with certain others, the second respondent herein prepared a provisional select list, vide circular, dated 09.12.2016, and the same was also placed on the website of Horticulture Department. Peculiarly, in the circular, attached to the said provisional select list, the Commissioner of Horticulture-second respondent herein invited objections. No provision of law could be brought to the notice of this Court 9 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 which enables the authorities to call for objections against the provisional select list so prepared. Inclusion of the applicants in the said list is also not in dispute. It is also not in dispute that, after strictly adhering to the procedure laid down in the Rules and the instructions issued by the authorities from time to time, the provisional select list came to be prepared on 09.12.2016. In order to consider the rights of the petitioners herein, to claim the appointment against the posts in question, it would be appropriate to refer to the judgments cited by the learned counsel for the applicants/petitioners herein. In GOVERNMENT OF ANDHRA PRADESH AND OTHERS v. CH.GANDHI2, referred to supra, the Honourable Apex Court, at paragraph Nos.22 to 25, held thus:
22. In Marripati Nagaraja and others v.
Government of Andhra Pradesh and others[6], this Court has ruled that the State, in exercise of its power conferred upon it under the proviso appended to Article 309 of the Constitution of India, is entitled to make rules with retrospective effect and retroactive operation. Ordinarily, in absence of any rule and that too a rule which was expressly given a retrospective effect, the rules prevailing as on the date of the notification are to be applied. But if some rule has been given a retrospective effect which is within the domain of the State, unless the same is set aside as being 2 2013 Law Suit (SC) 151 10 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 unconstitutional, the consequences flowing there from shall ensue. In such an event, the applicable rule would not be the rule which was existing but the one which had been validly brought on the statute book from an anterior date.
23. Presently, we shall deal with the contention of the learned counsel for the State who has laid emphasis on the fact that the said Rule has been substituted by the amendment dated 16.12.2003 and, therefore, it has to be treated to have retrospective effect. At this juncture, we may fruitfully refer to a passage from Maxwell on the Interpretation of Statute, 12th edition, wherein it has been stated thus: - "Perhaps no rule of construction is more firmly established than thus - 'that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only'. The rule has, in fact, two aspects, for it, 'involves another and subordinate rule, to the effect that a statute is not to be construed so as to have greater retrospective operation than its language renders necessary'."
24. In Francis Bennion's Statutory Interpretation, 2nd Edn., while emphasizing on the concept of retrospective legislation and rights, the learned author has stated thus: -
"The essential idea of a legal system is that 11 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 current law should govern current activities. Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow's backward adjustment of it. Such, we believe, is the nature of law. Dislike of ex post facto law is enshrined in the United States Constitution and in the Constitution of many American States, which forbid it. The true principle is that lex prospicit non respicit (law looks forward not back). As Willes, J. said retrospective legislation is 'contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law'."
25. In Hitendra Vishnu Thakur v. State of Maharashtra and others[7], this Court dwelled upon the ambit and sweep of the amending Act and the concept of retrospective effect and, eventually, ruled thus: -
i. "A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, 12 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 should not be given an extended meaning and should be strictly confined to its clearly-
defined limits.
ii. Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
iii. Every litigant has a vested right in substantive law but no such right exists in procedural law.
iv. A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
v. A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."
8. In MOHANAN v. DIRECTOR OF HOMEOPATHY3, referred to supra, at paragraph No.5, a Division Bench of the Kerala High Court referred to the earlier judgments, at paragraph Nos.11 to 13, in the following manner:
"5. It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have 3 2006 Law Suit (KER.) 378 13 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.
[11]. Again, in N.T.Devin Katti and Ors v.Karnataka Public Service Commission and Ors., in paragraphs 11 to 13, the Supreme Court held as under:
14 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 There is yet another aspect of the question.
Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of such candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event, selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case 15 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature.
[12]. In B.N.Nagarajan v. State of Mysore, the dispute related to the validity of appointment of Assistant Engineers. The Public Service Commission invited applications by issuing notifications for appointment to the post of Assistant Engineers in October 1958, May 1959 and April i960. The Commission made selection, interviewed the candidates and sent the select list to the Government in October/November 1960. But before the appointments could be made the Mysore Public Works .Engineering Department Services (Recruitment) Rules, 1960 came into force which, prescribed different provisions than those prescribed in the earlier notification in pursuance whereof the Public Service Commission had made the selections. The validity of the appointment made by the Government on the basis of the selection made by the Commission was challenged. The High 16 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 Court quashed the selection and appointments made in pursuance thereof. On appeal before this Court, validity of the appointments were assailed on the ground that since the appointments had been made after the amendment of the Rules the appointments should have been made in accordance with the amended Rules. A Constitution Bench of this Court rejected the contention holding that since the whole procedure of issuing advertisement, holding interviews and recommending the names having been followed in accordance with the then existing Rules prior to the enforcement of the amended Rules the appointments made on the basis of the recommendation made by the Public Service Commission could not be rendered invalid.
[13]. In Y.V.Rangaiah v. J.Sreenivasa Rao, similar question arose relating to recruitment by promotion. The question was whether promotion should be made in accordance with the Rules in force on the date the vacancies occurred or in accordance with the amended Rules. The Court observed as under: (SCC p. 289, para 9) The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub- Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant 17 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 prior to the amended rules would be governed by the old rules and not by the new rules.
The same view was taken in P.Ganeshwar Rao v. State of Andhra Pradesh 1988 Supp SCC 740. Similar view was taken in A.A.Calton v. Director of Education. It is a well accepted principle of construction that a statutory rule or Government order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government orders and any amendment of the rules or the Government order pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amended Rules or the amended Government orders, issued in exercise of its statutory power either by express provision or by necessary intendment indicate that amended Rules shall be applicable to the pending selections. See P.Mahendran v. State of Karnataka".
9. This Court, in W.P.No.5107 of 2015 and batch, dated 13.11.2015, at paragraph No.20, held as under:
"Having gone through the contentions urged in the counter-affidavit, I am of the view that the irregularities pointed out are not material and the selection process is in accordance with the notification issued for the said posts. As already said, absolutely there is no malpractice, manipulation or fraud in the 18 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 process of selection. If that is so, the entire select list cannot be cancelled to the detriment of the meritorious candidates. This is not a case wherein it is not possible to segregate the properly selected candidates from improperly selected candidates even by following the rule of reservation. On the pretext that some mistakes occurred in the process of selection, the entire selection process shall not be annulled. As pointed out by the Hon'ble Supreme Court in the judgments referred supra, if the selection process is tainted with corrupt practices, manipulations and fraud, then only the entire -selection can be cancelled. In the instant case, absolutely, even according to the respondents, there are no corrupt practices, manipulations or fraud played in the process of selection. Most of the petitioners are working as contract lecturers in the respondents-University. If they are selected fairly in accordance with the norms indicated in the notification, they cannot be denied appointment on the grounds viz., rule of reservation has not been followed, no cut-off marks were prescribed, some ineligible candidates were given appointment etc. The counter affidavit does not mention about any specific irregularities candidate-wise. Apparently, it seems that the basis for cancellation of the select list is nothing but the Note issued by the then Deputy Chief Minister of the erstwhile State of Andhra Pradesh and the fax message sent by the State Government. No specific irregularity has been pointed out by the Sub Committee appointed by the Governing Council of the respondents-University. Since the petitioners were given appointment orders, they 19 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 shall be absorbed in the said posts unless it is shown that any taint, malpractice or fraud is attached to their selection or that they were not properly selected for their respective posts".
10. Coming to the judgment cited by the learned Government Pleader in RAKHI RAY's case (first cited supra), at paragraph No.24, the High Court of Delhi held as under:
"A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope of any further appointment"
11. It is settled principle of law, as laid down in the above referred judgments, cited by the learned counsel for the petitioners, that the rules of the game cannot be changed in the middle and, in the instant case, the respondent authorities followed the said rule in breach. It is also pertinent to note, in this context, that in the letter, dated 20.01.2017, addressed by the second respondent herein to the State Government, in unnumbered paragraph No.3 of the 20 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 last page of the said letter, the second respondent expressed his opinion that it is desirable to entrust all future recruitments of Horticulture Officers to the APPSC but eventually recommended for entrustment of 36 Horticulture Officer posts, including the posts notified vide notification, dated 01.09.2016, to the APPSC and all future recruitments also to the APPSC. In this context, it would be appropriate to refer to certain paragraphs in the said letter of the second respondent, which would read as under:
"As could be seen from the above, the 15 marks being awarded for the experience has become a crucial factor and may change the fortunes of the candidates for the post of Horticulture Officers. Moreover, this an appointment in the department on permanent basis. Therefore, the selection should be based on merit of the candidates.
In the present system, the candidate with lesser merit, often getting an edge of advantage over the candidates with higher merit because of the weightage allowed for experience and seniority. The candidates with higher merit are left out due to lack of weightage marks. Further, the experience so rendered is either purely on outsourcing basis of contract basis and for such appointments, no rational selection procedure or merit is followed. Therefore, merit candidates should not be deprived of the benefit of a fair chance of selection for want of experience.
Accordingly, through various notifications (91) posts of Horticulture Officers were already
21 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 filled in the Department. At present, out of the total sanctioned posts of (territorial) posts of Horticulture Officers in the Department, 36 posts are vacant.
Therefore, filling up of (36) Horticulture Officer posts vacant as on date may be entrusted to APPSC and all future recruitments shall be done by the APPSC".
12. It is very much obvious from a reading of the above portion of the letter of the second respondent that he expressed certain possibilities of change of fortunes because of stipulation of certain qualifications in the notification. In the considered opinion of this Court, the said assumptions and presumptions cannot be the basis and foundation for the respondents herein to change the rules of the game in the middle of the process of selection.
13. In the counter-affidavit, filed by the Commissioner of Horticulture, it is stated as follows:
"The following is the eye-opener how undue advantage is gained:-
Ex: The following (2) candidates have applied in Zone-III but lesser merit candidates has to be selected because of the weightage allowed for experience and seniority. Kum M.Lakshmi Naga Nandini has got 88.10 OGPA in B.Sc. (Horticulture) Degree. She has completed B.Sc.Degree in July 2015. She has not worked on outsourcing in any Government Organization. Whereas Sri Ch.Rajasekhar has 22 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 got 81.0 OGPA B.Sc (Horticulture) Degree. He has completed B.Sc., Degree in July, 2011 and worked on outsourcing at ATMA, Nellore and he was awarded 15 marks for service and 5 marks for seniority as per the details furnished below:-
Kum.M.Lakshmi Naga Nandini Sri Ch.Rajasekhar OGPA Seniority Service Total OGPA Seniority Service Total computed per year 1 per year Computed per year 1 per to 75% mark 4 marks to 75% mark year 4 marks max.15 max.15 marks marks.
88.10X0.75 1 0 67.075 81.0X0.75 5 15 80.75 66.075 60.75
14. In the considered opinion of this Court, the above justification sought to be offered by the second respondent, by any stretch of imagination, cannot be sustained and the comparison sought to be pressed into service, in the definite opinion of this Court, is not based on any valid reason and there is no rationale in the said conclusions. The judgment on which the learned Government Pleader seeks to place reliance i.e., Rakhi Ray's case (first cited supra), in the considered opinion of this Court, would not render any assistance to the respondents in view of the factual and circumstantial variations and having regard to the principles laid down in the judgments, referred to supra, cited by the learned counsel for the petitioners.
15. For the foregoing reasons, the Writ Petition is allowed, setting aside the order, dated 30.11.2018, passed by the 23 AVSS,J & MVR,J W.P.No.45816 W.P.No.45816 of 2018 2018 Tribunal in O.A.No.1507 of 2017 and, consequently, the Original Application, filed by the petitioners herein, is allowed to the extent of the petitioners only with a further direction to the respondents herein to finalize the selection of the petitioners herein to the category of Horticulture Officers subject to compliance of all other requirements. This exercise shall be completed within a period of four months from the date of receipt of a copy of this order. There shall be no order as to costs.
16. As a sequel thereto, miscellaneous petitions, if any pending in this case, shall stand closed.
___________________ A.V. SESHA SAI, J _________________________ M.VENKATA RAMANA, J 18th July, 2019 LR Copy to be marked.
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