Andhra Pradesh High Court - Amravati
The State Of Andhra Pradesh vs Shaik Salahuddin Sabir on 8 November, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, Cheekati Manavendranath Roy
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
W.P. No. 46830 of 2018
ORDER:(Per the Hon'ble Sri Justice C.Praveen Kumar)
1) The present Writ Petition is filed under Article 226 of the Constitution of India challenging the Order of the Tribunal, dated 31.07.2017, passed in O.A. No. 3157 of 2016. Pending Writ Petition, I.A. No. 1 of 2019 came to be filed to implead the Petitioners as Respondent Nos. 8 to 14 by issuing clarification that the implead Respondents are entitled to be appointed irrespective of the outcome of the Writ Petition as it will not affect the rights of the Writ Petitioners.
2) No counter is filed opposing I.A. No. 1 of 20198, hence, the same is allowed.
3) In the affidavit filed by the State of Andhra Pradesh represented by its Commissioner of School Education it is averred that, initially the Respondent No. 1 herein filed O.A. seeking the authorities to fill up the vacancies of Secondary Grade Teacher [Urdu] with the selected members who have participated in DSC- 2014 by carrying forward equal number of vacancies for the next recruitment as per rules.
ii) Insofar as Nellore District is concerned, 27 Secondary Grade Teacher posts were notified, out of which 19 posts were carried forward posts and 08 posts relate to the said area. Out of 08 posts, 2 20% posts were reserved for open competition, while 80% posts were reserved for local candidates. It is said that, the Writ Petitioners received 39 applications against 27 Secondary Grade Teacher [Urdu] posts. After scrutiny, hall tickets were issued and 18 candidates appeared for examination. Out of whom, 03 secured minimum qualified marks as per the notification.
iii) It is said that, the Petitioners herein ought to have followed the same procedure in DSC-2014 also, having regard to the earlier notification issued by the Government, since there were no qualified candidates against other roster points. It is to be noted herein that, in pursuance of DSC-2012 notification, the Government de-reserved the posts after conducting limited recruitment, which remained unfilled due to non-availability of qualified candidate.
iv) Insofar as DSCs 2006 and 2008 are concerned, the unfilled reserved vacancies of Secondary Grade Teacher [Urdu] were filled up by issuing limited recruitment in the year 2011. It is said that, out of 323 posts notified in limited recruitment for the year 2011, only 09 posts were filled up, while 314 unfilled reserved vacancies of Secondary Grade Teacher [Urdu] were de-reserved after obtaining permission from the Government. It is said that, 300 posts of Secondary Grade Teacher [Urdu] were notified in open category of DSC-2012 and same were filled in pursuance of DSC-2012 and not in DSC-2014 as alleged. Therefore, it is pleaded that, the plea of the applicant that even in DSC-2014, the notified reserved category posts shall be de-reserved for the purpose of appointment of open 3 category candidate of DSC-2014 is impermissible and cannot be accepted.
v) Having regard to the facts in issue, it is pleaded that, the petitioners have followed Rule 22(g) of the Andhra Pradesh State and Subordinate Service Rules scrupulously, which clearly mandates that, if in any recruitment, qualified candidates belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes are not available, the vacancies may be carry forward to the next DSC and even in the subsequent DSC also if none of the candidates are available, then the Petitioners have to conduct a limited recruitment process. Even in the limited recruitment, if none of the candidates are available against the above said categories, the Petitioners herein can fill those posts with the OC general candidates.
vi) Having regard to the above and since the Government has got the power to de-reserve posts only after conducting limited recruitment, it is urged that the observations made by the Tribunal is without basis.
4) A Counter came to be filed by the Respondents disputing the averments made in the affidavit filed in support of the Writ Petition. It is said that Writ of Certiorari would lie only if Order is passed without jurisdiction or the same is perverse and not otherwise. While commenting upon the delay in filing the Writ Petition against the Order passed by the Tribunal, it is pleaded that, pursuant to the notification, dated 01.12.2014, wherein, 14 posts were notified in Guntur District, out of which 07 posts were filled up while 07 posts 4 belonging to reserve category remained unfilled. According to him, 18 posts were notified in Nellore District, out of which 02 posts were filled up and the remaining 16 posts mainly belonging to the reserve category remained unfilled. It is pleaded that, in the year 2006 and 2008, the reserved vacancies of Secondary Grade Teacher [Urdu] remained unfilled and in-spite of limited recruitment in the year 2011 and the subsequent recruitment in the year 2012, major posts remained unfilled. In-stead of filling the unfilled vacancies of Reserve Category, carrying forward the same number of vacancies for next recruitment is said to be illegal and improper.
ii) It is further contended that, a plain reading of Rule 22(g) would reveal that, in absence of Reserved Category candidates, the Authorities must take steps for a limited recruitment immediately and under 2(h)(i), even if the reserved vacancies remain unfilled, the same shall be allotted by open competition.
iii) Stressing on the words "Immediately" and the word "Allotted", Sri. Pratap Narayan Sanghi, the learned Counsel for the Respondents would submit that the Order passed by the Tribunal warrants no interference. The Counsel further pleads that, though a fresh notification for limited recruitment was issued in the year 2018, which is a subject matter of challenge in different O.As., before the Tribunal, the same is suppressed.
iv) Insofar as the implead petitioners are concerned, though, the petitioners are covered under the notification of backlog posts reserved for Backward Classes, Scheduled Castes and Scheduled 5 Tribes candidates, no appointment orders are issued, while, similarly placed persons were appointed in the neighboring Districts. It is pleaded that, appointment orders are not issued on the ground that the present Writ Petition is pending consideration. Having regard to the above, it is pleaded that a clarification may be issued for appointment of the implead petitioners irrespective of the outcomes of the result.
5) In order to appreciate the rival arguments, it would be useful to extract Rule 22(g) and (h) of the Andhra Pradesh State and Subordinate Service Rules, 1996, which reads as under:
"(g) If in any recruitment, qualified candidates belonging to the Scheduled Castes, Scheduled Tribes, *[Backward Classes (Group-A), (Group-B), (Group-C), (Group-D) and as the case may be (Group-E)] and women are not available for appointment to any or all the vacancies reserved for them, a limited recruitment confined to candidates belonging to them shall be made immediately after the general recruitment to select and appoint qualified candidates from among the persons belonging to these communities to fill such reserved vacancies.
(h) (i) If in any recruitment, qualified candidates belonging to the Scheduled Castes, Scheduled Tribes or, *[Backward Classes (Group-A), (Group-B), (Group- C), (Group-D) and as the case may be (Group-E)] or women are not available for appointment to all or any of the vacancies reserved for them even after conducting a limited recruitment as specified in sub-rule (g), such vacancies or vacancy may be allotted to the Open Competition after obtaining the permission of the Government and may, thereafter, be filled by a candidate or candidates selected on the basis of open competition.
(ii) Where any vacancies reserved for the Scheduled Castes or Scheduled Tribes or *[Backward Classes (Group-A), (Group-B), (Group-C), (Group-D) and as the case may be (Group-E)] or women are so filled by candidates belonging to other communities, an equal number of vacancies shall be reserved in the succeeding recruitment for the Scheduled Castes or STs or Backward Classes or women, in addition to the vacancies that may be available for that recruitment for them and if in the said succeeding recruitment year also, qualified candidates belonging to the Scheduled Castes or Scheduled Tribes or *[Backward Classes (Group-A), (Group-B), (Group-C), (Group-D) and as the case may be (Group-E)] or women are not available for appointment to all or any of the additional vacancies which are so reserved in that succeeding recruitment year, an equal number of vacancies shall again be reserved in the next succeeding recruitment year for the Scheduled Castes or Scheduled Tribes or *[Backward Classes (Group-A), (Group- B), (Group-C), (Group-D) and as the case may be (Group-E)] or women in addition to the number of vacancies that may be available for the next succeeding recruitment for the Scheduled Castes or Scheduled Tribes or *[Backward Classes (Group-A), (Group-B), (Group-C), (Group-D) and as the case may be (Group-E)] or women:
Provided that if in the said second succeeding recruitment also no qualified candidates belonging to the Scheduled Castes or Scheduled Tribes or *[Backward Classes (Group-A), (Group-B), (Group-C), (Group-D) and as the case may be (Group-E)] or women are available for appointment to all or any of the additional vacancies which are so reserved in that succeeding recruitment year, 6 an equal number of vacancies shall again be reserved in the next succeeding recruitment year for the Scheduled Castes or Scheduled Tribes or *[Backward Classes (Group-A), (Group-B), (Group-C), (Group-D) and as the case may be (Group-E)] or women in addition to the number of vacancies that may be available for the next succeeding recruitment for the Scheduled Castes or Scheduled Tribes or Backward Classes or women;
Provided further that in the third succeeding recruitment if qualified candidates belonging to Schedule Tribes or as the case may be Schedule Castes are not available, a vacancy reserved to be filled by a candidate belonging to Scheduled Tribes may be filled by a candidate belonging to Scheduled Castes and a vacancy reserved to be filled by a candidate belonging to Scheduled Castes may be filled by a candidate belonging to Scheduled Tribes and if a qualified candidate belonging to a particular group of *[Backward Classes (Group-A), (Group-B), (Group-C), (Group-D) and as the case may be (Group-E)] is not available for appointment, the vacancy reserved to that group shall accrue to the next group;
(iii) if any additional vacancy or vacancies reserved in favour of candidates belonging to the Scheduled Castes or Scheduled Tribes or *[Backward Classes (Group-A), (Group-B), (Group-C), (Group-D) and as the case may be (Group-E)] or women in any recruitment in accordance with the provisions in clause (ii) appointments thereto shall be made before the appointments in the order of rotation for the relevant recruitment are made."
6) Basing on the above provisions of law, the Government issued Notification to fill up vacancies for Scheduled Castes, Schedule Tribes and Backward Classes in the year 2006. As the vacancies were not filled up, the Respondents conducted DSC-2008, wherein, they were not able to fill up the posts with reserved candidates and as such, the same were carried forward to the year 2014. A reading of the Rule show that, if the vacancy reserved for Scheduled Castes, Schedule Tribes and Backward Classes are not filled up in a particular recruitment year, the State has to conduct a limited recruitment and in the limited recruitment also, if the reserved candidates are not available, then the posts have to be filled up from the open competition and the said number of vacancies shall be carried forward to the next recruitment year.
7) It appears that, the Respondents have conducted general recruitment in the year 2006 for the posts of Secondary Grade Teacher [Urdu], due to non-availability of the reserved candidates for Scheduled Castes, Schedule Tribes and Backward Classes and the 7 State ought to have conducted limited recruitment for the unfilled posts. But, without doing so, they have conducted general recruitment in the year 2008. Even, in 2008, no candidate was available for reserved posts and as such, the Respondents have conducted recruitment in the year 2011. Even in that year, no candidates was available under the said category.
8) Vide G.O.Ms. No. 7, dated 18.01.2012, the Government accorded permission to the Commissioner and Director of School Education to notify 314 backlog posts of Secondary Grade Teachers [Urdu Medium] of DSC-2006 and DSC-2008 recruitment and in pursuance of the same, Notification came to be issued, in the year 2014, for filling up the said posts.
9) As per Rule 22(g) & (h), if there are any vacancies pertaining to reserved candidates, the Respondents have to conduct a limited recruitment and follow the procedure laid down therein. From a reading of the Order impugned and material on record, it appears that, the procedure contemplated under Rule 22(g) & (h) was not followed and the Writ Petitioners have not conducted limited recruitment. Instead they carried forward the vacancies to the year 2011 and then to the year 2014 and thereafter in the year 2014 the vacancies which remained unfilled were thrown open to general recruitment, which we feel is contrary to the procedure prescribed and the law laid down.
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10) Having regard to the above, the direction given by the Tribunal to fill up the unfilled posts of Secondary Grade Teachers [Urdu] pertaining to the reserved candidates, i.e., Scheduled Castes, Schedule Tribes and Backward Classes, by next candidates in the open competition as per their merit, cannot be said to be incorrect or illegal.
11) Since, the grievance of the implead petitioners is that the authorities are not filling up the vacancies due to pendency of the writ petition, they are now at liberty to do so in accordance with law if the implead petitioners are otherwise entitled to.
12) Accordingly, the Writ Petition stands dismissed. No Order as to Costs.
13) Consequently, miscellaneous petitions pending, if any, shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR ________________________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date: 08.11.2019.
SM.
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI CHEEKATI MANAVENDRANATH ROY W.P. No. 46830 of 2018 (Per the Hon'ble Sri Justice C.Praveen Kumar) Date: 08.11.2019 SM.