THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 23769 of 2014
ORDER:
Heard learned counsel for the petitioner, learned counsel appearing for respondents 2 to 4 and learned counsel appearing for respondent No.5.
2. This petition is filed by the petitioner to issue any appropriate writ, order or direction preferably a Writ of Mandamus, declaring the action of the respondent corporation in selecting the 5th respondent to the post of Welder pursuant to notification No.3/2011 in spite of securing lesser marks than the petitioner as being illegal, arbitrary and violative of Article 14 and 16 of the Constitution of India and consequently set aside the selection of the 5th respondent by calling for the records relating to the selection process of the Welders in the said notification and appoint the petitioner in the place of the 5th respondent.
3. The case of the petitioner, in brief, is as follows:
a) The petitioner belongs to SC community. The respondent corporation issued a notification/advertisement WP_23769_2014 2 SN,J No.3/2011 inviting inter-alia applications for the post of Welder-5 vacancies out of which 2 vacancies are for General, 1 for OBC category, one for SC and another for ST category. The petitioner applied for the post of Welder and attended trade test and oral interview and secured total marks of 79. The petitioner was under the bonafide impression that the respondent being a Government of India enterprise might have done the selections in a fair and just manner.
b) The petitioner came to know in the 2nd week of March, 2014 that great injustice has been done to him i.e. though he stood 3rd in the merit list, he has been excluded to the benefit of general category candidate i.e. the 5th respondent. The petitioner filed an application under RTI Act on 22.03.2014. The Central Public Information Officer of the respondent corporation replied that in Col.No.5, the 5th respondent, who belongs to general category secured 70.25 marks, less than 9 marks.
c) The only grievance of the petitioner is that the 5th respondent selected under the general category though he secured nine marks less than him. The respondent corporation ought to have selected the two top scorers in the WP_23769_2014 3 SN,J general category irrespective of their category, which is settled law. If the respondents had selected two top scorers in the general category, Sri T.Padma Reddy would have remained in the selection being the top scorer and one Sri K.Srinivas, who belongs to SC, who is next in the merit by scoring 79.2 marks ought to have been selected in the general category and if the selection has been done in this manner, the petitioner would have got selection in SC category being the highest scorer in SC category.
d) The respondents being State within the meaning of Article 12 of the Constitution of India as held by the Apex Court, their every action should not only be fair, legitimate and above-board but should be without any affection or aversion and it should neither be suggestive of discrimination nor even apparently give an impression of bias, favouritism and nepotism and anything done in undue haste can also be terms as arbitrary and cannot be condoned in law and in essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides as it would only be a case of colourable exercise of power.
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e) By virtue of non selection, the petitioner is put to
serious and irreparable loss. The selection process adopted
by the respondent corporation is per se illegal and arbitrary and is liable to be interdicted and set aside. Hence, this writ petition.
4. The counter affidavit filed on behalf of respondents 2 to 4, in brief, is as follows:
a) The writ petition is liable to be dismissed on the sole ground of delay and latches. The petitioner was not selected against a post reserved for SC quota as some other person, who scored more marks than the petitioner was selected and appointed. The petitioner waited for three long years and as an after thought filed the present writ petition.
b) The petitioner made an application for the said post as SC candidate. At the time of making application, the petitioner was engaged by the corporation as a Jr. Artisan on contract basis for a fixed term with consolidated pay along with similarly placed candidates depending on the needs of the corporation. The selection committee had taken the following decisions, which were approved by the competent authority:
WP_23769_2014 5 SN,J "2. The selection for above posts were conducted in August, 2011. The process of selection was through different factors viz written test and viva for Scientific Assistants and Trade Test and Viva for Tradesman-B. The written test marks for SAA were 70% and 30% for interview. In respect of Tradesman-B, the trade test was for 80% and interview 20%. The candidates are required to secure minimum 50% marks in each factor of selection and 60% marks in aggregate. Further 20% relaxation is allowed to SC/ST candidates on the standards made applicable to general category. The selection process was overseen by Director (Technical).
c) In the selection, the candidates, who were working with the respondent corporation on contract basis were treated as internal candidates and also allowed to apply. Normally, the respondent corporation does not follow any age criteria for internal candidates. The selection being against permanent posts, the internal candidates of SC/ST/OBC, who have corssed the age limit prescribed in the advertisement and recommended by selection committee, will be considered against reserved quota.
5. The counter affidavit filed on behalf of respondent No.5, in brief, is as follows:
a) The writ petition is not maintainable as the same has been filed with obnoxious and extraordinary delay of more than three years ever since the date of appointments and notification. The WP_23769_2014 6 SN,J petitioner has approached this Court with unclean hands by suppressing the facts.
b) The available five vacancies were categorized and reserved for two posts for General, one post for OBC, one post for SC, one post for ST categories. For selection purpose, two tests were conducted based on which selection was to be made i.e. Trade test and oral interview. Likewise, candidates were selected based on the performance in the said criteria. The selections were made category-wise purely on merit basis on average marks scored in the said test. Based on the category-wise selection procedure being followed, in the list made under general category, the 5th respondent was second highest scorer with 70.25 marks stood only after one Mr Padma Reddy who scored 83.75 marks. Since the respondent corporation had secured two posts for General Category, the selection process was completed way back 2011. The 5th respondent was rightfully entitled to be selected to be selected for the post notified and accordingly got selected. The 5th respondent, in fact, joined as trades man-B in 2011 and got promoted twice in 2014 and 2017, as tradesman-C and Tradesman- D. Therefore, the writ petition is liable to be dismissed.
6. PERUSED THE RECORD.
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7. Para 5 of the counter affidavit filed by respondents 2, 3 and 4 titled as recommendations reads as under:
5. RECOMMENDATIONS:
The selection committee minutes with the following salient points are recommended:
a) wherever there is single post notified, first candidate in merit will be considered.
b) wherever there is more than one post notified, the SC/ST/OBC candidates in order of merit will be considered first.
c) SC/ST/OBC candidates, who are recommended with relaxed standards will be considered against reserved posts."
Hence, the petitioner was considered against the reserved category since he was given age relaxation and 20% relaxation on the standards made applicable to general category. The marks scored by the petitioner was after allowing 20% relaxation on the marks actually scored by the 5th respondent. The marks scored by the petitioner holds valid only in case the vacancy in SC quota has to be filled and not for general category vacancy since the marks scored after 20% relaxation on the standards. The 5th respondent was considered for the post under General category who was next in the order of merit. The selection committee considered the candidates category - wise and since there was only one post reserved for SC category and since the candidate who was selected against this reserved post scored more marks than the petitioner, WP_23769_2014 8 SN,J he was selected in the post reserved for SC. As the petitioner was over aged, age relaxation was given to him and as per the recommendations of the Selection Committee, after considering 20% relaxations on the standards of marks secured, the petitioner was considered against the post reserved for SC and his name was second in the list and hence, he was not appointed.
8. The Hon'ble Apex Court in judgment reported in 2011(4) ALD 112 SC in Shankara Co-op. Housing Society Ltd. V. M.Prabhakar and others1 observed as follows:
"The relevant considerations in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of 1 2011(4) ALD 112 SC WP_23769_2014 9 SN,J explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay.
9. During the course of arguments the counsel for the respondents brought on record the office order No.ZWS1/684(2)/2010-UPL, dated 26.05.2011 of APSRTC and a bare perusal of the same clearly indicates that the petitioner's name figures at Serial No.2 and also the fact that the petitioner reported to duty as Welder in APSRTC on 25.04.2011 itself.
10. This Court after taking into consideration the observations and the parameters laid down by the Apex Court for entertaining the writ petition as per judgment in Shankara Co-op. Housing Society Ltd.'s case referred to and extracted above and after taking into consideration the averments made in para '5' of the counter affidavit filed by WP_23769_2014 10 SN,J respondents 2, 3 and 4, as extracted above, and also the fact that the petitioner herein filed an application in March, 2014 under RTI Act, after three years from the date of selection and filed the present writ petition two months after obtaining the information under RTI Act, only as an after thought and further giving credence to the fact that the petitioner is gainfully employed as a permanent employee and he has been working in TSRTC, since 25.04.2011 as a Welder, opines that the present writ petition is devoid of merits and the same is liable to be dismissed.
11. Accordingly, the writ petition is dismissed. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand dismissed.
_________________ SUREPALLI NANDA, J Date: 10.10.2022 Note : L.R. copy to be makred b/o kvrm