Andhra Pradesh High Court - Amravati
S Narasimha Reddy vs The State Of A.P. on 8 October, 2021
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.No.3205 of 2021
ORDER:
This writ petition is filed for the following relief:
"to issue a writ in the nature of Certiorari or any other appropriate writ order or direction by calling for the records relating the proceedings of the 2nd respondent bearing Rc.No.ESE02-20021/53/2019-RECTMT-CSE dt. 19.11.2020 and quash the same by declaring the same as illegal, arbitrary and unconstitutional being violative of Articles 14 and 16 of Constitution of India and consequently direct the respondents to consider the case of the petitioner for appointment as Physical Education Teacher and appoint him as such and to pass..."
This Court has heard Sri S.Gopala Rao, learned counsel for the petitioner and Government Pleader for Services-III.
The case of the petitioner is that he was selected as a Physical Education Teacher (Telugu) in DSC, 2008 in Anantapur District. Ahead of him, in the list of candidates was one G.Nallappa, who expired on 06.06.2009 and he did not even appear for the verification of the certificates etc., on 15.10.2009. Therefore, it is contended by the learned counsel for the petitioner that the petitioner should have been selected and the inclusion of name of Sri G.Nallappa in the selection list/merit list is not correct as he had died long prior to the finalization of the list. Learned counsel submits that 2 the petitioner thereupon filed O.A.No.6319 of 2011 before the Andhra Pradesh Administrative Tribunal as his candidature was not considered and his name was not included in the list. Interim orders were granted, but before O.A. can be finally disposed of, the Tribunal was abolished compelling the petitioner to approach this Court by way of a writ petition.
In this writ petition, apart from the facts mentioned above, learned counsel states that they are assailing the final order dated 19.11.2020 by which the case of the petitioner was finally rejected. Learned counsel submits that since G.Nallappa has died, his name should not have been included in the selection list and the petitioner, who is next in order of merit, should have been selected.
In reply to this, learned Government Pleader for Services-III appears and argues that the respondents did not have any intimation that Sri G.Nallappa died prior to the finalization of the selection list. Therefore, he states that they have rightly included the name of Sri G.Nallappa. It is also submitted that as per the notification issued in G.O.Ms.No.161 dated 06.12.2008, pursuant to which the selection took place, there is a clear embargo against a waiting list. He relies upon clause 16.6 to argue that the number of candidates was only equal to the vacancies notified and there shall be no waiting list.
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Learned Government Pleader also argues that there is no concept of carry forward of this vacancy which is in the OC general category. He also submits that the last candidate, who was the called in the list had secured 52.5 marks in the OC general category with 69th rank, whereas the petitioner only secured 51.50 marks with rank 74. Thus in the alternative, it is also submitted that the petitioner did not come within the zone of contention.
After hearing learned counsel, this Court is of the opinion that the facts are not really in dispute. Clause 16.6 of the notification is as below:
16. Preparation of selection lists:
(6) The number of candidates selected shall not be more than the number of vacancies notified.
There shall be no waiting list.
It is clear that the respondents did not have any intimation of the death of G.Nallappa before the selection list was finalized. This clause which is reproduced above clearly states that the number of candidates selected shall be equal to the vacancies notified. It is made clear in the G.O. that there shall not be a waiting list.
In that view of the matter, the petitioner cannot claim that he should be included in the selection list as there is no concept of a waiting list or a concept of carry forward of a vacancy. In fact even if a person is included/named in the selection list he does not get an indefeasible right to be 4 selected. The State/appointing agency can for good reasons decide not to fill up all the vacancies also. Shankarsan Dash v. Union of India1 as followed in many cases including Commissioner of Police and another v. Umesh Kumar2. If this is the legal position, a person like the petitioner who was not included in the list does not have a right to be included and to claim a mandamus.
In fact, in the rejoinder, it is stated that 63 vacancies were to be filled up and 62 were filled up. Therefore, the petitioner is entitled to an appointment. In the opinion of this Court, this argument is fallacious. Once there is no concept of waiting list or even the concept of carry forward of a vacancy, the same cannot be filled up by calling the next candidate, who claims to be the next in the list. It is also not really denied that the petitioner secured 51.5 marks. The last candidate called as per the counter affidavit secured 52.5 marks. Although this is called „cut-off‟ in the strict sense of the word, this appears to be the mark of the last candidate, who was called. Therefore, it is clear that the petitioner did not actually come within the zone of consideration and did not also secured the marks on par with the last candidate called. This Court is of the opinion that the petitioner is not 1 (1991) 3 SCC 47 2 (2020) 10 SCC 448 5 entitled to any relief as prayed for both in view of the law and the facts.
The writ petition is therefore dismissed. No order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed.
___________________________ D.V.S.S.SOMAYAJULU, J Date: 08.10.2021 KLP