Telangana High Court
K.Srinivasa Rao vs The State Of Telangana, on 5 March, 2024
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.14056 of 2023
ORDER:
This Writ Petition is filed seeking to declare the Order bearing No.MR-184/127/84/Adm.III, dated 22.05.2023, issued by the 2nd respondent appointing respondents 4 to 6 herein as Deputy Executive Engineers, as illegal and arbitrary and consequently to direct the respondents to declare the petitioners as seniors to respondents 4 to 6 duly granting promotion to the petitioners as Deputy Executive Engineers considering their seniority and qualification.
2) Heard Sri A.P. Suresh Ram, learned counsel for the petitioners, learned Government Pleader for Services-I appearing for respondent No.1, Sri Ch. Jagannatha Rao, learned Standing Counsel for Osmania University, appearing for respondents 2 and 3, Sri Kodumury Venkat Reddy, learned counsel appearing for respondents 4 and 6. In spite of service of notice, none appeared for respondent No.5.
3) The case of the petitioners is that they were appointed in the respondent University in the years 1990, 1997 and 1984, respectively, in different posts. After due promotions, finally, they were promoted to the post of Assistant Executive Engineer from different feeder categories. As they are eligible for promotion to the 2 post of Deputy Executive Engineers, in pursuance to the notification No.MR-68/127/84/Adm.III, dated 27.02.2023, issued by the second respondent, the petitioners have applied to the said posts and claim that they are seniors in the category of Assistant Executive Engineers and ignoring their case, the unofficial respondents were selected to the said posts of Deputy Executive Engineer. Hence, the present Writ Petition.
4) Pursuant to the directions of this Court, dated 26.06.2023, the second respondent has produced the original record pertaining to the selection under challenge.
5) Learned counsel for the petitioners has contended that the notified vacancies for the post of Deputy Executive Engineer, University Building Division of the second respondent shall be filled in adherence with the Andhra Pradesh Roads and Buildings Engineering Services Rules notified in G.O.Ms.No.103, TR & B (S.II.), dated 22.05.1996, which mandate that the method of appointment for the post of Deputy Executive Engineer, inter alia, shall be done by promotion and in compliance with Rule 33 of Telangana State and Subordinate Service Rules, 1996, which mandates that seniority in the cadre of Assistant Executive Engineer shall be taken into consideration while considering the appointment to the vacancy of Deputy Executive Engineers notified 3 by the second respondent through Notification dated 27.02.2023. Ignoring the same, the respondents have proceeded to recruit the candidates, who are juniors to the petitioners herein. It is further contended that the second respondent without notifying or considering the seniority list has conducted an interview to the candidates who applied for the notified posts and arbitrarily issued appointment orders to respondents 4 to 6 herein, based on the recommendations of the Selection Committee of the second respondent University, for the notified vacancies through order bearing No.MR-184/127/84/Adm.III, dated 22.05.2023. It is further contended that the entire exercise taken up by the second respondent for filing up of notified vacancies through recruitment Notification dated 27.02.2023 is opaque, lacks transparency and contrary to the mandate of G.O.Ms.No.103, dated 22.05.1996. Hence, the impugned order appointing respondents 4 to 6 ignoring the petitioners' seniority is liable to be set aside.
6) Per contra, the learned Standing Counsel appearing for the respondents while admitting the fact that they have issued notification inviting applications to fill up three vacant posts of Deputy Executive Engineers, internally, from eligible Assistant Executive Engineers/Assistant Engineers, who possess the qualification and experience, in terms of G.O.Ms.No.103, dated 4 22.05.1996, has submitted that the post of Deputy Executive Engineer is a gazetted post. As per Rule 5 of Telangana State and Subordinate Service Rules, 1996, all the gazetted posts are selection posts. Therefore, all the eligible candidates including the petitioners were called for the interview, they were interviewed by the Selection Committee constituted for the purpose of selections. Based on their performance in the interview, the Selection Committee has submitted its recommendations and based on the said recommendations, respondents 4 to 6 were appointed to the post of Deputy Executive Engineer, and the same was ratified by the Executive Council in its 174th Meeting held on 08.06.2023. Therefore, the respondents are justified in selecting the unofficial respondents 4 to 6. Learned Standing Counsel further submits that Rule of seniority is applicable to the candidates, who come from different feeder categories viz., Assistant Engineers, Draughtsman, Special Grade or Draughtsman Grade-I. But, in the present case, all the candidates including the petitioners belong to one feeder category only. Therefore, the Rule of seniority is not applicable to the case on hand.
7) Learned counsel appearing for respondents 4 and 6 submits that based on the recommendations of the Selection Committee, the appointments were given to the unofficial respondents. Hence, 5 the same is strictly in accordance with the Rules and there are no merits in the writ petition.
8) This Court has taken note of the submissions made by the respective counsel.
9) A perusal of the record discloses that, admittedly, the notification No.MR-68/127/84/Adm.III, dated 27.02.2023, was issued by the second respondent for filling up three vacant posts of Deputy Executive Engineer, University Building Division, in terms of G.O.Ms.No.103, dated 22.05.1996. It is also an admitted fact that the post of Deputy Executive Engineer is a Gazetted post and therefore mode of selection to the said post is governed by Rule 5 of the Telangana State and Subordinate Service Rules, 1996, which reads as under:
Selection Posts: All Gazetted posts.
• Promotions/appointment by transfer in that service shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal by the appointing authority from the panel of candidates.
• Such Panel shall be prepared as laid down in Rule-6 by the appointing authority or any other authority empowered on this behalf.6
10) From the above, it is clear that merit and ability is the criteria for selection to the Gazetted Post i.e. Deputy Executive Engineer, in the present case.
11) A perusal of the original record produced before this Court categorically reveals that the Selection Committee, under the Chairmanship of Vice-Chancellor of the University, was constituted consisting of the following members, for the purpose of interviewing the candidates for the posts of Deputy Executive Engineer and Assistant Engineer:
1) The Registrar, Osmania University - Member
2) The Head, Dept. of Civil Engineering, OU - Member
3) The Head, Dept. of Electrical Engg, O.U -Member
4) Sri M. Satyanarayana, Superintending - Expert Engineer (Retired), R&B, Govt. of Telangana Member
12) Accordingly, all the candidates including the petitioners were called for interview on 06.05.2023 and based on the performance of the individuals in the interview, the Selection Committee has submitted its recommendations. The record further discloses that in the interview, assessment of the candidates was done and marks were awarded under three categories viz., (1) Experience (20 marks), (2) Additional Qualification (10 marks) and (3) Interview Performance (20 marks) and in total 50 marks. The record further 7 discloses that the unofficial respondents herein have secured more marks than the petitioners herein. Therefore, the Selection Committee has recommended the names of unofficial respondents herein for appointment to the posts of Deputy Executive Engineer and further the names of petitioners 2 and 1 were also shown in the 'Waiting List'. Basing on the said recommendations, the second respondent has issued the impugned order dated 22.05.2023 appointing the unofficial respondents as Deputy Executive Engineers and the same was ratified by the Executive Council in its 174th Meeting held on 01.06.2023. That apart, as per Rule 5 (a) of the Rules, the seniority will be considered only where merit and ability are approximately equal, but in the present case, since the unofficial respondents have secured more marks than the petitioners herein, they were selected to the post of Deputy Executive Engineer.
13) Though this Court finds that there is a force in the contention of the petitioners' counsel that the impugned notification dated 27.02.2023 is silent with regard to selection criteria, but the same cannot be looked into unless there being any challenge to the said notification dated 27.02.2023.
14) That apart, it is settled law that the person having consciously participated in the interview, cannot turn around and 8 challenge the selection process afterwards. In this context, it is appropriate to refer to the judgment of the Hon'ble Supreme Court in K.H. Siraj v. High Court of Kerala 1 wherein it was held as under:
"73. The appellant-petitioners having participated in the interview in this background, it is not open to the appellant- petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper."
The above said principle was reiterated by the Hon'ble Supreme Court in State of Uttar Pradesh v. Karunesh Kumar 2.
15) In view of the above, this Court does not see any merit in the writ petition and the same is liable to be dismissed.
16) Accordingly, the Writ Petition is dismissed.
Miscellaneous petitions pending, if any, shall stand closed. No costs.
____________________ PULLA KARTHIK, J Date :05.03.2024 sur 1 (2006) 6 SCC 395 2 2022 SCC OnLine SC 1706