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WP_28180_2018
SN,J
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 28180 of 2018
Between:
J.Devender
... Petitioner
And
Telangana State Public Service Commission and others
... Respondents
JUDGMENT PRONOUNCED ON: 30.10.2023
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : Yes
_________________
SUREPALLI NANDA, J
2
WP_28180_2018
SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 28180 of 2018
% 30.10.2023
Between:
# J.Devender
..... Petitioner
And
$ Telangana State Public Service Commission and others
... Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Mr A.Ravinder
^ counsel for Respondent No.1 : Mr D.Balkishan Rao
^counsel for respondents 2 to 4: G.P. for services
? Cases Referred:
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WP_28180_2018
SN,J
HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 28180 of 2018
ORDER:
Heard Mr J.Devender, learned counsel appearing on behalf of the petitioner, Mr D.Balakishan Rao, learned standing counsel appearing on behalf of respondent No.1/ TSPSC and learned Government Pleader for Services III.
2. This Writ Petition is filed to issue an order or direction more particularly one in the Writ of Mandamus by declaring the action of the respondent in not considering the claim of the petitioner for selection and appointment to the post of Veterinary Assistant pursuant to the notification No.30 of 2017 as per his merit on par with others with all consequential benefits.
3. The case of the petitioner, in brief, is as follows:
a) The petitioner is native of Banjara Nagar of Torrur Mandal of Mahabubabad District and belong to ST Lambada Community and he completed intermediate vocational course in dairying (Dairy) in the year 2004.
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WP_28180_2018 SN,J
b) The 1st respondent issued notification calling online application from qualified candidates vide notification No.30 of 2017.
c) The petitioner applied for the said examination, appeared for the said examination and obtained 107 marks as per key published by the Public Service Commission.
d) The petitioner is physically handicapped with 43% of disability in respect of left lower limb.
e) The petitioner's case, however, was not considered for appointment to the post of Veterinary Assistant. Hence, aggrieved by the same, petitioner filed the present writ petition.
4. Counter affidavit filed by the 1st respondents, in brief, is as follows:
a) The candidates who secured lower marks than the petitioner were considered for selection and appointment on the ground that they belong to agency area Schedule Tribe. The petitioner has not submitted ST Agency Area Certificate. As per G.O.Ms.No.64, dated 04.04.1988 the post of Veterinary Assistants in Animal Husbandry Department shall be filled in, in the Scheduled Areas of Telangana State, only by the local 5 WP_28180_2018 SN,J members of the Scheduled Tribes, notwithstanding anything contained in any other order, Rule or Law in force.
b) The petitioner does not belong to ST Agency Area of Mahabubabad District. There is no agency area in Mahabubabad to consider the case of the petitioner. Therefore, the writ petition is liable to be dismissed as devoid of merits.
5. The contenton of the respondents 2 to 4 as per the Counter affidavit filed, is as follows:
The vacancies were notified vide notification No.30 of 2017, dated 02.06.2017 and the selection of petitioner is concerned, it is under the purview of TSPSC, Hyderabad being recruiting agency. Therefore, the writ petition is liable to be dismissed.
PERUSED THE RECORD
6. The counter affidavit filed on behalf of respondent No.1, in particular, paras 7 to 9, read as under:
"7. In this connection, I respectfully submit that the Commission has notified Notification No. 30/2017 to the post of veterinary assistant in Animal Husbandry Department. As per para 9 IV of Notification "As per G.O.Ms No 64, Social Welfare (V) Department Dated 04/04/1988 the post of Veterinary assistants in Animal 6 WP_28180_2018 SN,J Husbandry Department shall be filled in, in the Scheduled Areas of Telangana State, only by the local members of the Scheduled Tribes, notwithstanding anything contained in any other Order, Rule or Law in force". The following para is specifically mentioned in the notification regarding reservation to local ST candidates of scheduled areas and the same is produced here under for kind perusal.
iv) Reservation to local S.T candidates of scheduled areas (Agency area) As per G.O.Ms. No.64, Social Welfare (V) Department, Dt. 04/04/1988, the post of Veterinary Assistants in Animal Husbandry Department shall be filled in, in the Scheduled Areas of Telangana State only by the local members of the Scheduled Tribes, not withstanding anything contained in any other Order, Rule or Law in force.
8. In view of the above, I respectfully submit that the petitioner herein does not belong to ST Agency Area of Mahabubabad District (Which was under erstwhile Warangal District). There is no agency area in Mahabubabad to consider his case in agency area, and he has not submitted his ST Agency Area certificate. Hence he did not get selection.
9. I respectfully submit that the petitioner could not get selection as he did not produce the 7 WP_28180_2018 SN,J required certificate of ST Agency Area, though he is higher in merit when compared with the marks of selected candidates in agency area since the posts in ST Agency Area are required to be filled only with ST candidates of agency area as per rules. All the vacancies are filled up in agency area except two (2) vacancies pertaining to ST (Woman) and two (2) vacancies pertaining to PH candidates and the petitioner herein is not eligible against these vacancies. It is not possible to fill the unfilled vacancies in any agency area without this certificate, just because they belong to the district concerned. As such, the plea of the petitioner to consider his case in any of the unfilled vacancies of agency area cannot be considered as it will be contrary to the rules. In the circumstances, the writ petition is liable to be dismissed.
7. The counter affidavit filed on behalf of respondents 2 to 4, in particular paras 3 and 4 read as under:
"3. In reply to para 2 of the petitioners affidavit, it is submitted that as per the permission accorded by the Government vide G.O.Ms.No.8 AH DD& F, dated 03.05.2017 necessary indent has been placed before the Secretary, TSPSC, Hyderabad for filling up (54) vacant posts of Veterinary Assistant in Veterinary & Animal Husbandry Department in the State. The vacancies were notified vide notification No.30/2017, dated 2.6.2017.8
WP_28180_2018 SN,J Regarding the selection of petitioners are concerned, it is under the purview of the TSPSC, Hyderabad being recruiting agency.
4) Further, it is submitted that, regarding the selection of procedure is concerned, it is under the purview of the TSPSC, Hyderabad being recruiting agency for the post of veterinary Assistant DISCUSSION AND CONCLUSION DISCUSSION
8. It is the specific case of the petitioner that the petitioner is native of Banjara Nagar of Torrur Mandal of Mahabubabad District and belongs to ST Lambada Community. The petitioner completed Intermediate Vocational course in Dairying (Dairy) from Board of Intermediate Education A.P in the year 2004 and that the petitioner hails from poor family with a rural background and he is fully eligible and qualified for the post of Veterinary Assistant. The petitioner in response to notification No.30/2017, dated 02.06.2017 applied on line and received hall ticket No.3020171156 to appear for written examination. The petitioner obtained 107 marks in the written examination and the petitioner was provisionally selected for the post of Veterinary Assistant. It is further the case of the petitioner that inspite of the petitioner having 9 WP_28180_2018 SN,J stood in the merit list in the ST category, the respondents did not consider the petitioners candidature for appointment to the post of Veterinary Assistant. Aggrieved by the same, the petitioner filed the present writ petition.
9. The petitioner placed reliance On the judgment of Division Bench order dated 02.11.2006 of High Court in W.P.No.14591 of 2006 and the order dated 15.12.2018 of the Division Bench in W.P.No.1651 of 2014.
10. Learned Government Pleader appearing on behalf of respondents 2 to 4 submits that regarding the selection of procedure is concerned, it is under the purview of the 1st respondent being the recruiting agency for the post of Veterinary Assistant. The grievance of the petitioner for not being selected for the post of Veterinary Assistant is concerned it is 1st respondent, who has to consider the same.
11. Learned standing counsel appearing on behalf of the 1st respondent mainly contends that the petitioner has not submitted ST Agency Area Certificate, hence, the petitioner's case was not considered, though the petitioner is higher in merit when compared with the marks of selected candidates in 10 WP_28180_2018 SN,J agency area, since the posts for ST Agency Area are required to be filled only with ST candidates of Agency Area as per rules. Further learned counsel appearing on behalf of the 1st respondent contends that it is not possible to fill the unfilled vacancies in any Agency Area without ST Agency Area Certificate, just because the petitioner belongs to the District concerned.
12. Similar issue came up for consideration before the Division Bench of High Court at Hyderabad in W.P.No.14591 of 2006 and it was held in the said judgment that once it is admitted that the candidates are residents of the unit of appointment viz the District, there cannot be a sub-classification of scheduled tribes residing in scheduled areas of a District and scheduled tribes residing in non scheduled areas of the same unit of appointment and further observed that as a matter of fact a discrimination based upon residence is opposed to the constitution. The Division Bench of High Court at Hyderabad in the said order at paras 10 and 11 observed as under:
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WP_28180_2018 SN,J "10. As seen from the notification, it was issued under Paragraph-5(1) of the V-Schedule to the Constitution. The expression used in the notification is "local members of the Scheduled Tribes". The expression "local members" is not defined in the Constitution. Considering the special status of the State of Andhra Pradesh, the aforesaid notification has to be read, in tune with the Presidential Order, 1974 issued, in exercise of the powers conferred by Clauses 1 and 2 of Article 371D of the Constitution. Though the Presidential Order does not use the expression "local members" it uses the expression "local candidate". Paragraph-4 of the Presidential Order defines a local candidate. This definition is in the context of what a local area is. The expression "local area" is to be understood in the context of Paragraph-3 of the Presidential Order.
11. Therefore, the term "local members" appearing in G.O.Ms.No.68, dated 16.04.1988, has to be understood in the context of the expressions "local area" and "local candidate" as indicated in the Presidential Order. The Presidential Order carves out certain posts as District Posts, Zonal Posts, Multi-Zonal Posts and State-wide Posts. If the unit of appointment is a District, the local area for appointment to such a post would be the District. If the local area for appointment to a post is a District, a person residing in that area is a local member.
13. Under similar circumstances, the Division Bench of High Court at Hyderabad vide order dated 15.12.2018 in W.P.No.1651 of 2014, directed the respondents therein to consider the claim of the petitioners therein for appointment of MPHA without reference to the agency area. In particular, the said order at para 13 and 14, reads as under:
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WP_28180_2018 SN,J "13. The only case of the respondents is that the petitioners do not belong to Scheduled Tribes of particular area, whereas, admittedly, the petitioners are Scheduled Tribes of Warangal District. Thus, in view of the judgment rendered by this Court as stated above, the petitioners are also eligible to be considered for the post of MPHA (Male).
14. Accordingly, the writ petition is allowed and the respondents are directed to appoint the petitioners for the post of MPHA (Male) on contract basis within a period of four (4) weeks from today.
14. The affidavit filed by the petitioner in support of I.A.No.1 of 2022 in W.P.No.28180 of 2018, in particular, at para Nos. 5 and 7, it is specifically averred as under:
"5. It is respectfully submitted that opposing the claim in the Writ Petition, a counter affidavit is filed on behalf of the 1* Respondent inter alia stating that in Scheduled Areas, candidature of members of local Scheduled Tribe candidates alone has to be considered and therefore, my claim cannot be considered despite vacancies are available in the District. Several candidates were given appointment subsequent to the filing of the present Writ Petition after deputing them for training though they did not even apply pursuant to the recruitment notification. A copy of one such proceeding is herewith enclosed for the kind perusal of this Hon'ble Court.
7. It is respectfully submitted that subsequent to the filing of the writ petition, it came to light that certain individuals were given appointments as Veterinary Assistants in the same unit of appointment. I have 13 WP_28180_2018 SN,J obtained information under the Right to Information Act, which indicates that only 462 of 541 vacancies notified were filled up and that 76 vacancies are available stating the above facts, I have submitted a representation to the 1st respondent and requested to extend similar benefit in my case too.
15. This Court opines that the plea of the 1st respondent as projected in the counter affidavit filed in the present writ petition that in Scheduled Areas, candidature of members of local Scheduled Tribe candidates alone has to be considered is contrary to the letter and spirit of the two judgments rendered by this Court in W.P.No.14591 of 2006 and W.P.No.1651 of 2014 and a bare perusal of the full text of the judgments dated 02.11.2006 passed in W.P.No.14591 of 2006 and the judgment dated 15.12.2018 passed in W.P.No.1651 of 2014 clearly indicates that this Court was pleased to hold that District is to be reckoned as local area and the District has to be taken as unit and the same cannot be confined to a particular area.
16. Taking into consideration the aforesaid facts and circumstances of the case, and the averments made by the petitioner in paras 5 and 7 of the affidavit filed in 14 WP_28180_2018 SN,J support of I..No.1 of 2022 (referred to and extracted above) and duly considering the view taken by the Division Bench of High Court at Hyderabad in its judgments dated 02.11.2006 passed in W.P.No.14591 of 2006 and the judgment dated 15.12.2018 passed in W.P.No.1651 of 2014, the writ petition is allowed and the 1st respondent is directed to consider the petitioner's representation dated 06.04.2022 for appointment to the post of Veterinary Assistant pursuant to the Notification No.30/2017, dated 02.06.2017 issued by the 1st respondent as per petitioner's own merit in the existing/unfilled vacancies on the analogy of orders of appointment issued in respect of the certain other individuals duly considering the view taken by the orders of the Division Bench of High Court at Hyderabad in its judgment dated 02.11.2006 passed in W.P.No.14591 of 2006 and the Division Bench judgment dated 15.12.2018 of the High Court at Hyderabad passed in W.P.No.1651 of 2014, (referred to above) within a period of three weeks from 15 WP_28180_2018 SN,J the date of receipt of copy of the order and duly communicate the decision to the petitioner. No costs.
Miscellaneous petitions, if any, pending shall stand closed.
__________________ SUREPALLI NANDA, J Date: 30.10.2023 Note: L.R.Copy to be marked.
b/o kvrm