1 RRN,J
W.P.No.28443 of 2019
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
+ WRIT PETITION No.28443 of 2019
Between:
A.N. Sri Harish
...Petitioner
vs.
Osmania University & another
... Respondents
JUDGMENT PRONOUNCED ON: 19.11.2022
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
___________________________________
NAMAVARAPU RAJESHWAR RAO, J
2 RRN,J
W.P.No.28443 of 2019
* THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+ WRIT PETITION No.28443 of 2019
% 19--11--2022
# A.N. Sri Harish
...Petitioner
vs.
$ Osmania University & another
... Respondents
!Counsel for the Petitioner : Sri Srikanth Hariharan
^Counsel for Respondent No.1: Sri CH. Jagannath Rao
<Gist :
>Head Note :
? Cases referred
1 1998(5) ALD 590
3 RRN,J
W.P.No.28443 of 2019
HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION NO.28443 of 2019
ORDER:
This Writ Petition is filed seeking to issue a Writ, order or direction more in the nature of Writ of Mandamus declaring the inaction of the respondent University in not appointing the petitioner to the post of Superintendent against roster point 99- BC-B(W) category despite non-availability of women candidates against the said post and eligibility of the petitioner, as arbitrary and contrary to Rule 22(g) of G.O.Ms.No.65, General Administration Department (Ser.D) dt.15.02.1997 and consequently, direct the 1st respondent University to appoint the petitioner to the post of Superintendent against roster point 99- BC-B(W).
2. Heard Sri Srikanth Hariharan, learned counsel for the petitioner and Sri CH. Jagannath Rao, learned Standing counsel for the 1st respondent. Perused the record.
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W.P.No.28443 of 2019
3. This Court while admitting the Writ Petition, passed an interim order on 22.04.2021 stating that any promotion made will be subject to the result of the Writ Petition.
4. The contention of the petitioner is that, he was appointed as a Typist-III-cum-Care Taker in the respondent University on 30.08.2006. Subsequently, he was promoted as a Senior Assistant on 31.03.2017. He submitted that he belongs to BC-B category. Petitioner further submits that the respondent University issued notification vide No.MR-58/5/82.Estt.1 dt. 24.4.2019 for filling up of five vacant posts in Superintendent category. For this post, all Senior Assistants who have put in two years as Senior Assistant and five years of total regular service, were eligible to participate in the recruitment process. He also applied for the said post and he secured 106.5 marks and was placed in 12th position in the qualified list. As there were candidates for the notified backlog posts and existing backlog posts, the same have been filled by the University by order 03.12.2019 vide MR No.165/5/82/Estt.I and while doing so, the 5 RRN,J W.P.No.28443 of 2019 respondent University did not fill up the roster point 81 which belongs to B.C.(B) (W) on the ground that there were no eligible women candidates who were available and the same was carried forward. As such, the respondent University did not choose to fill up the post with male candidates like petitioner. Hence, the present Writ Petition.
5. Learned Counsel for the petitioner submits that respondent University adopted G.O.(P) No.65 General Administration (Ser.D) Department dt.15.02.1997 in respect of teaching and non- teaching appointments in the University by virtue of Orders dt. 26.02.2000 vide No.MR-96/25/88/SC-ST/ADMN.II-1 and the said University adopted a roster system of appointment in the Unit of 100 vacancies. As per rule 22(g) of the above said G.O., it is provided that in any recruitment, qualified candidate belonging to the reserved category and women are not available for appointment to the vacancies reserved for them a limited recruitment confined to the candidates belonging to them shall be conducted immediately after the general recruitment.
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W.P.No.28443 of 2019
5.1. Learned counsel for the petitioner further submits that the respondent University across cadres of appointment that a post which is reserved for women category cannot be filled up owing to non-availability of women candidates, the post in the corresponding roster point are filled up with persons who are male and have the requisite qualification and belong to the same category of reservation.
5.2 Learned counsel for the petitioner also brought to the notice of this Court that the respondent University in an earlier occasion, vide orders No.MR-201/5/82/ESTT-I, dt.29.08.2011, filled up the roster point 45-B.C. (A) (W) for appointment to the post of Superintendent with a male candidate by name Srinivas Rao, who was working as a Senior Assistant. He also submits that in the earlier notification No.MR-17/83/87/ESTT.I dt.11.10.2012, it was clearly mentioned that if women candidates were not available in the roster then the same will be filled with suitable male candidates of the same category. If the respondent University adopts to continue its policy of appointing male 7 RRN,J W.P.No.28443 of 2019 candidates against the posts reserved for women category, as per its usual practice, petitioner would have been entitled to be appointed as against running roster point 99 BC-B(W) category. If the petitioner is not appointed as per the said roster point, his promotion prospects would be jeopardized and thereby utilizing his career by 4 to 5 years.
5.3. Learned counsel for the petitioner also further submits that the petitioner made a representation to the respondent University on 22.11.2019 but till date the respondent University has not acted upon the said representation. Subsequently, the petitioner filed an RTI application dt.6.12.2019 with the respondent University seeking to provide the table of empanelment for appointment against the corresponding roster, for this also the respondent University has not responded.
5.4. Learned counsel for the petitioner further submits that as per orders dt.03.12.2019, the respondent University has already filled up till roster point 93 and the backlog roster is already filled by the respondent University, therefore, the current running 8 RRN,J W.P.No.28443 of 2019 roster point 96. He further submits that as per the qualified list 90-OC-W cannot be filled up due to unavailability of women candidates, and he was informed that five vacant posts in Superintendent Category would arise in future within the period of two years. Therefore, he became eligible for appointment to the said post at 99-point roster BC-B(W). The action of the respondent University is discriminatory and it violates Article 14 of Constitution of India.
5.5. Learned counsel for the petitioner further submits that the reservation for women is a horizontal reservation under Article 15(3) of the Constitution of India, and it is settled proposition of law that the horizontal reservation cannot be carried forward, and the intent and purport of Rule 22(g) is to ensure that if the reserved category women candidates are unavailable, an opportunity is to be given to qualified male candidates of the same category. He further submits that Rule 22(g) of G.O.(P) No.65 clearly states that if there are no women candidates available for the reserved category, then a limited recruitment shall be held for 9 RRN,J W.P.No.28443 of 2019 the candidates belonging to the category to fill such vacancies reserved for such candidates. The respondent University is not implementing the said rule in its true spirit. 5.6. Learned counsel for the petitioner further submits that the respondent University has postponed the appointment to roster point 81-BC-B(W) category, his consequential entitlement to the post of Superintendent in the roster point 99-BC-B(W) is also prejudiced. Accordingly, prayed to allow the Writ Petition.
6. The respondent University filed counter denying all the allegations made by the petitioner. In the counter, it admitted that the University is following the G.O.(P) No.65 dt.15.02.1997 and in terms of the said G.O., the post reserved for women candidates cannot be filled up with male candidates. Therefore, the roster point reserved for BC-B(W) has been carried forward as no woman candidate belonging to BC-B category qualified in the written test. The principle of carry forward of vacancies in respect of women shall be with effect from 28.10.1996. The principle of roster points for women candidates shall be with effect from 10 RRN,J W.P.No.28443 of 2019 01.08.1996. It is further contended that the action taken by the University in not filling up the BC-B(W) post reserved for women with male candidate is in accordance with the G.O.(P) No.65 General Administration (Service-D) Department dt.15.12.1997 and is in the spirit of reservation provided for women by the Government and is no way arbitrary and prayed to dismiss the Writ Petition.
7. Learned counsel for the petitioner relied upon the judgment in Md.Iqbal Ahmed And Ors. vs High Court Of Andhra Pradesh1 wherein this Court at para No.21 held as under:
"We therefore, strike down the action of the respondents in carrying forward the vacancies reserved for, but unfilled by women candidates and direct that those vacancies should be thrown open to the men candidates in the order of merit and subject to the observance of roster points and the rules of reservation applicable to SCs, STs and BCs. In effect, the original list sent up by the High Court will get revived substantially. The cases of the petitioners for inclusion in the approved, list shall be considered against the resultant 1 1998(5) ALD 590 11 RRN,J W.P.No.28443 of 2019 vacancies. The writ petitions are accordingly, allowed. No costs."
8. In view of the rival contentions made by both parties, this Court is of the considered view that in an earlier occasion the University itself issued notification dt.11.10.2012 stating that in case women candidates are not available in the above roster, the same will be filled up with male candidates in the same category. The same was deleted in the present notification dt.24.04.2019, is not acceptable. In earlier occasions also in the year 2012 and 2018 in similar circumstances the University appointed male candidates when eligible women candidates were not available in the same category. This type of discrimination cannot be accepted. Moreover, the orders dated 03.12.2019, while filling up the vacancies with regard to notification dated 24.04.2019, the 1st respondent University specifically stated that the roster point 81 BC-B (W) and 90-BC-OC (W) are carried forward. It is against the settled law in terms of Article 15(3) of Constitution of India where horizontal reservations cannot be carried forward.
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9. The judgment relied upon by the learned counsel for the petitioner is valid as the carrying forward of vacancies is erroneous. While issuing the notification for filling up the vacancies, the authorities cannot deviate the earlier notification and it is against the settled law.
10. The G.O.(P) No.65 dt.15.02.1997, which is adopted by the University in the point No. (g) & (h) is as follows:
"(g) If in any recruitment, qualified candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes (Group-A), (Group-B), (Group-C) and as the case may be (Group-D) 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, Backward Classes (Group-A), (Group-B), (Group-C) 13 RRN,J W.P.No.28443 of 2019 and as the case may be (Group-D) 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-rules (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."
11. In view of above facts and circumstances and also in view of the settled principle of law, this Court is of the considered view that this Writ Petition can be disposed with a direction to the respondent University to consider the case of the petitioner in accordance with law.
12. Accordingly, the Writ Petition is disposed of by directing the respondent University to consider the case of the petitioner and pass an appropriate order in accordance with Law within a period of three months from the date of receipt of copy of this Order. No costs.
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W.P.No.28443 of 2019
As a sequel thereto, miscellaneous applications, if any, pending in this writ petition, shall stand dismissed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO,J Date: 19.11.2022 BDR