R. Ramanjineyulu vs The State Of Andhra Pradesh
2021 Latest Caselaw 1695 AP

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                WRIT PETITION NO.16320 OF 2020

ORDER:

Initially this writ petition is filed under Article 226 of the

Constitution of India seeking the following relief:

"To declare the proceedings in ROC No.757/2019/A2 dated 08.09.2020 issued by the 3rd respondent as illegal, arbitrary and violative of Articles 14, 16 and 21 of Constitution of India and further declare that the petitioner is entitled to be continued in service in the post of Ward Education & Data Processing Secretary in pursuance of his selection based on merit in the first list."

Later, the prayer was amended by order of this Court in

I.A.No.2 of 2020 dated 26.11.2020 by adding the words

"and consequential proceedings in ROC No.757/2019/A2 dated

17.09.2020 issued by the fourth respondent"

Before commencement of argument in the writ petition, the

petitioner also impleaded Respondent No.5/C. Sreevidya as party

respondent No.5 to the writ petition, as per order in I.A.No.3 of

2020 dated 26.11.2020, since she is an affected party, in case the

relief is granted.

The case of the petitioner in brief is that, the second

respondent/Commissioner & Director of Municipal Administration

had issued Notification No.04/2019 dated 26.07.2019 for 3,786

posts in 13 districts in the State, calling for applications for

recruitment to the post of Ward Education & Data Processing

Secretary in A.P. Municipal Ministerial Subordinate Services. A

merit list of qualified candidates has been notified whereunder a

total of 1,735 candidates were qualified in the written test. The

petitioner's name stands at Serial No.1455. After verification of the MSM,J WP.No.16320 of 2020

certificates, the fourth respondent has issued an order of

appointment on 08.01.2020 in the name of the petitioner offering

him appointment. Though the petitioner was issued the order of

appointment on 08.01.2020, no posting order was issued for a

period of 20 days and in the interregnum period, he was forced to

submit an undertaking dated 22.01.2020 to the respondents that

he will not raise any objection over the final merit list of candidates

under the sports quota to be communicated by the Sports

Authority of Andhra Pradesh and that he is liable to be terminated

at any time without any prior notice and that he will not claim any

seniority in the cadre of Ward Education & Data Processing

Secretary, if his case is considered for promotion.

To the shock and surprise, a show cause notice dated

29.08.2020 was issued by the fourth respondent, stating that the

District Collector & Chairman, GS/WS DSC, 2019 has approved

and forwarded the meritorious sports candidates list of six (6)

members and requested the Regional Director of Municipal

Administration, Anantapuram to issue necessary appointment

orders and to cancel the appointment orders of the petitioner.

Therefore, he was directed to submit his

explanation/representation within three days from the date of

receipt of the show cause notice, as to why appointment order

issued earlier shall not be terminated as per conditions specified in

Condition (xv) (a,b,c) of the appointment order dated 08.01.2020,

since he was not eligible for the post of Ward Education & Data

Processing Secretary with reference to his merit under sports

quota. On receipt of the same, the petitioner submitted his MSM,J WP.No.16320 of 2020

explanation on 02.09.2020. But, the impugned order in the

present writ petition i.e. ROC No.757/2019/A2 dated 08.09.2020

was issued by the third respondent, cancelling the appointment of

this petitioner, terminating him from services is now challenged as

illegal and arbitrary on the following grounds:

a) The qualifying marks of 40%, 35% and 30% are fixed for OC, BC and SC/ST respectively. But, only 1735 candidates were qualified in the written examination and the merit list was prepared. But, 15 marks were given to all the candidates who appeared for the examination, so also to fill the unfilled vacancies. The fifth respondent became eligible on account of addition of 15 marks to the original marks secured, being a meritorious sports woman.

b) Addition of 15 marks to qualify some other candidate(s) with whom selection committee is interested and thereby addition of marks which is not a part of notification is a subsequent change of the rules of the game and the same is illegal, since the addition of marks is only to appoint the candidates of their choice.

c) Obtaining undertaking dated 22.01.2020 forcibly from the petitioner that he will not raise any objection over the final merit list of candidates under the sports quota to be communicated by the State Sports Authority of Andhra Pradesh is not a pre-requisite as per the notification. But, when the petitioner was aspiring for immediate public employment, taking advantage of the situation, the respondents obtained such an undertaking, making him to wait for twenty days without giving posting. When such undertaking is not a prescription in the notification or a pre- requisite, obtaining such undertaking is an illegality, since such undertaking is nothing but change of rules of the game after completion of the game.

MSM,J WP.No.16320 of 2020

Learned counsel for the petitioner contended that, the

petitioner was given provisional appointment vide Roc.No.757/

2019/A2/DSC-2019 dated 08.01.2020, incorporating certain

conditions. The specific conditions are mentioned in

Condition No.(xv), which is as follows:

a. If any superior meritorious Sports person of the second list than the 1st approved list communicated by the SAAP files any objection, appointment orders issued to the 1st list candidates may be cancelled without assigning reasons to the said individuals.

b. If any cases filed/to be filed against the appointment orders now going to be issued for the 1st list candidates these appointment orders will be cancelled subject to the outcome of the orders of the Hon'ble Courts.

c. Those who are selected after communication of 2nd list by accumulation of 15 marks and whose certificates verification process is under process, their candidature may be considered as 2nd list, and the eligible candidates in the second list may be filled with the vacant post i.e. after completion of first list.

It is contended that, the conditions are not part of the

notification and such conditions were incorporated in the order of

posting only with a view to cancel the appointment of this

petitioner and it is nothing but change of rules of the game after

completion of the game. Therefore, it is contrary to the law laid

down by the Apex Court in K. Manjusree v. State of Andhra

Pradesh1; Hemani Malhotra v. High Court of Delhi2; Secretary,

A.P. Public Service Commission v. B. Swapna3; M. Surender

Reddy v. Government of Andhra Pradesh4 and N.T. Bevin Katti

and others v. Karnataka Public Service Commission5.

On the basis of the ratio laid down in the above judgments, the

1 (2008) 3 SCC 512 2 AIR 2008 Supreme Court 2103 (para 8 & 9) 3 (2005) 4 SCC 154 4 (2015) 8 SCC 410 5 AIR 1990 SC 1233 MSM,J WP.No.16320 of 2020

petitioner sought to set-aside the impugned order, cancelling the

appoint of this petitioner while declaring the same as illegal,

arbitrary and contrary to the law laid down in the above

judgments.

The respondents filed counter affidavit, denying material

allegations, while admitting about the facts narrated in the writ

affidavit, including issue of impugned proceedings, cancelling the

appointment of this petitioner on the ground that Respondent No.5

became more meritorious than this petitioner. However, the

following are the specific contentions urged in the counter affidavit.

a) As per Rules in force six (6) posts of ward Education & Data Processing Secretary in Anantapuramu District are reserved under Sports quota in which one (1) for open quota and five (5) for local quota. Basing on the eligibility, the preliminary list is prepared by the Respondent No. 3 (District Selection Committee (DSC) rep by its Chairman & District Collector) for GS/WS-2019.

b) As per the instructions and guidelines issued by the Government vide G.O.Ms.No.74 Y, T&C (Sports) Dept dated 09.08.2012 and G.O.Ms.No.13 GAD (Ser-D) Dept dt:23-01-2018, Four (4) candidates have been recommended by the SAPP under Sports quota based on their merit. Out of four (4) candidates two (2) candidates have been selected under general category and the remaining two candidates including the petitioner who have secured T-90 merit was selected for the post of ward Education & Data Secretary.

c) As per the list communicated by the Sports Authority of Andhra Pradesh, (it will hereinafter be referred as 'SAAP') the petitioner was called for certificate verification by the Respondent No.3 for GS/WS-2019. After due verification, Respondent No.3 forwarded the same tot Respondent No.4 (Regional Director-cum-Appellate Commissioner of Municipal Administration, Anantapuramu) for issuance of appointment orders.

MSM,J WP.No.16320 of 2020

The respondents submitted in the counter affidavit that,

provisional appointment order on 08.01.2020 was issued by

Respondent No.4 under sports quota to the petitioner as Ward

Education & Data Processing Secretary with certain conditions and

that the clear instructions of Respondent No.3 to the petitioner

was issued by this Respondent No.4, on conditional basis to avoid

further complications, as another meritorious list after adding 15

grace marks was pending before SAAP at that point of time and the

said fact was brought to the notice of the petitioner from the very

beginning and the petitioner is well aware of the said rule

provision. After receiving the posting proposals dated 25.01.2020

from the Respondent No.3, DSC for GS/WS-2019, Respondent

No.4 has issued posting orders on 28.01.2020. In view of the same,

the petitioner was posted and later removed as the other

candidates who referred to SAAP after awarding bonus marks

became more meritorious than this petitioner, as he was placed at

Serial No.18 and other 17 candidates were more meritorious than

this petitioner. Therefore, they were selected and consequently the

cancellation order of this petitioner's appointment is not in

accordance with law and requested to dismiss the writ petition.

During hearing, Sri Motupalli Vijay Kumar, learned counsel

for the petitioner vehemently contended that, when the Notification

No.4/2019 dated 26.07.2019 did not prescribe addition of marks,

preparation of second list, cancellation of appointments after

second list, subsequently for different reasons known to the

selection committee, 15 bonus marks were awarded in Anantapur

District only and after awarding bonus marks, 20 candidates were MSM,J WP.No.16320 of 2020

referred to Spots Authority of Andhra Pradesh after completion of

entire recruitment process and issue of appointment order to this

petitioner. On the pretext that 17 candidates became more

meritorious than this petitioner, his selection was cancelled and he

was deprived of employment, thereby, the petitioner is put to

serious loss and such removal is arbitrary, hit by Articles, 14, 16

and 21 of the Constitution of India. Apart from that, imposing such

conditions for cancellation in the posting order and addition of 15

marks etc, is nothing but change of rules after the game is over,

which is impermissible under law, in view of the law declared by

the Apex Court in the judgments referred above. On the basis of

subsequent clauses brought into existence, removal of this

petitioner from the services of Ward Education & Data Processing

Secretary is highly illegal, arbitrary, and by applying the principles

laid down by the Apex Court in the judgments referred supra,

learned counsel for the petitioner requested this Court to set-aside

the impugned order and declare the same as illegal and arbitrary

and direct the respondents to permit this petitioner to continue in

the post of Ward Education & Data Processing Secretary.

Whereas, Sri N. Aswartha Narayana, learned Government

Pleader for Services-I while admitting everything as narrated in the

writ petition, supported the case of the respondents on the ground

that the District Selection Committee felt that it is necessary to

add 15 bonus marks to select more candidates, as the number of

vacancies remained unfilled, thereby, the District Selection

Committee decided to add 15 bonus marks and on account of

addition of 15 marks to 20 candidates in meritorious sports quota, MSM,J WP.No.16320 of 2020

they were referred to Sports Authority of Andhra Pradesh and the

Sports Authority of Andhra Pradesh found that 17 candidates are

more meritorious than this petitioner, thereby they were entitled to

be appointed as Ward Education & Data Processing Secretary. This

petitioner was at Serial No.18 in the list of meritorious sports

persons, whereas, the posts notified are six in number, thereby the

petitioner was terminated from the services, as he became

ineligible on account of addition of 15 marks, and he was

terminated from the services based on the conditions incorporated

in the appointment order and undertaking dated 22.01.2020

furnished by this petitioner. Therefore, it is contended that,

termination of this petitioner is only in compliance of conditions

incorporated in the letter of posting and undertaking, but not

otherwise, thereby, it is directly in accordance with law and

requested to dismiss the writ petition.

Considering rival contentions, perusing the material

available on record, the sole point that arises for consideration is:

"Whether incorporation of Condition No.(xv) in appointment letter vide Roc.No.757/ 2019/A2/DSC- 2019 dated 08.01.2020 issued by Respondent No.2/Regional Director of Municipal Administration & Chairman, Regional Level Committee, Anantapur and obtaining an undertaking dated 22.01.2020 amounts to change of rules after completion of selection process. If so, whether termination of the services of this petitioner based on changed rules of selection process is illegal and invalid. If so, order of termination impugned in the writ petition is liable to be set-aside?"

P O I N T:

As there is no dispute regarding the facts, it is unnecessary

to reiterate the facts. However, it is necessary to advert to

Notification No.4/2019 dated 26.07.2019 inviting applications for MSM,J WP.No.16320 of 2020

appointment of Ward Education & Data Processing Secretary in

A.P. Subordinate Service Rules. The eligibility criteria are fixed in

Paragraph No.2. But, the petitioner admittedly possessed requisite

educational qualification, eligibility and he is a graduate in

computer science for selection to the post of Ward Education &

Data Processing Secretary, as prescribed in Para-3 of the

Notification which deals with educational qualification for

appointment to the post of Ward Education & Data Processing

Secretary. The educational qualification of this petitioner is not in

quarrel. Therefore, this Court need not give any stress on the

qualification.

The claim of this petitioner is that, he is a meritorious sports

person and claimed reservation in terms of Para-4 of the

Notification dated 26.07.2019. Para-4 deals with reservation and

Para-4.3 explained the meaning of meritorious sports person,

which reads as follows:

"The meritorious sportsman means a sportsman who has represented the State or the Country in a nation or international competition or Universities in the Inter- University tournaments conducted by the Inter-University Boards or the State School team in the national sports/games for schools conducted by the All India School Games Federation in any of the games, sports, mentioned below; and any other games/sports as may be specified by the Government from time to time, in terms of Rule 2(19) of A.P. State and Subordinate Service Rules."

However, the list of sports or games is not specified.

Para-10 of the Notification deals with Scheme of

Examination, whereas, Para-15 deals with procedure of selection,

which is vital in the present facts of the case. Therefore, Para-15 is

extracted hereunder for better appreciation.

MSM,J WP.No.16320 of 2020

"15.1 Each District is the unit of appointment.

15.2 The selection of candidates for appointment to the posts shall be based on the merit in the OMR based written examination, to be held as per the scheme examination enunciated at para 10 above.

15.3 The minimum qualifying marks for consideration of a candidate to the selection process are 40% for OCs, 35% for BCs and 30% for SCs, STs and PHs or as per rules. In the event of Schedule Cast & Schedule Tribe candidates not coming up for selection with the existing minimum prescribed for selection in the competitive examination their selection shall be considered on the basis of rank with reference to their performance in the written competitive examination irrespective of the marks secured.

N.B. Mere securing of minimum qualifying marks does not confer any right to the candidate for being considered to the selection.

15.4 Where the candidates get equal number of marks in the OMR based written examination if two or more candidates get equal total of marks, those candidates shall be bracketed. Candidates within the same bracket shall then be ranked 1,2,3 etc according to age i.e, oldest being considered for selection. In case there is tie in age, the person who possesses educational qualification at earlier date would be considered.

15.5 WEIGHTAGE OF MARKS (10%): Ten (10%) percentage of marks as weightage is allowed only for the existing outsourcing/contract employees who are already working in the posts relating to the notified posts in the department, who fulfil the following norms:-

a) Recruitment has been done following due process

b) Qualification criteria has been met

c) Rule of reservation has been followed

d) Local/Non-local norms have been followed

15.6 The Department has the power to assign a candidate to any of the notified posts for which he is considered to be qualified and eligible, subject to fulfilling the selection criterion.

15.7 The appointment of selected candidates will be subject to their being found fit in the appropriate medical classification, and if he/she is of sound health, active habits and free from any bodily defect or infirmity.

15.8 In the event of candidate getting selected to a post, he/she should stay/reside in the ULB he allotted.

15.9 ANSWER KEY AND MARKS: Answer key would be published on the website and marks of each candidate are also displayed on website. No separate memorandum of marks would be issued."

A bare reading of procedure of selection specified in Para-13

of the Notification, it is clear that only one select list strictly

adhering to the merit is to be prepared. The authority did not

reserve any right to add any bonus marks to any category under

reservation to prepare second list based on bonus marks in the MSM,J WP.No.16320 of 2020

event of vacancies available and to prepare the second list on

addition of bonus marks in the event of vacancies available or to

refer the meritorious sportsperson to Sports Authority of Andhra

Pradesh, after addition of 15 marks. Obtaining an undertaking

dated 22.01.2020 and incorporation of conditions in Condition

No.(xv) of the terms and conditions in ROC No.757/2019/A2 dated

08.01.2020 are conspicuously absent in the Notification dated

26.07.2019. Therefore, those acts of the respondents in adding

bonus 15 marks, preparing the second list after addition of 15

marks, referring the meritorious sports person to Sports Authority

of Andhra Pradesh after addition of 15 marks, obtaining of

undertaking dated 22.01.2020 and incorporating Condition No.(xv)

of the terms and conditions in ROC No.757/2019/A2 dated

08.01.2020 in the posting orders are invented subsequent to

completion of selection process and after issuing letter of

allotment/posting to this petitioner as Ward Education & Data

Processing Secretary.

When the notification did not confer any power on the

District Selection Committee, awarding bonus marks and

preparing second list as stated above, is nothing but change of

rules of recruitment process after recruitment is completed. Since

obtaining an agreement, incorporation of conditions in the letter of

appointment in Condition No.(xv) of the terms and conditions in

ROC No.757/2019/A2 dated 08.01.2020 depriving employment to

the candidates who were already selected in the selection process

as per the merit list and appointed to the post. Such subsequent

conditions are invalid and illegal.

MSM,J WP.No.16320 of 2020

Recruitment to public services must command public

confidence. Persons who are recruited are intended to fulfil public

functions associated with the functioning of the Government.

In Sachin Kumar & Ors. v. Delhi Subordinate Service

Selection Board (DSSSB) & Ors6 the Apex Court observed that,

when unfair methods are adopted and selection was completed, the

Supreme Court heavily laid down on the recruiting agency i.e.

State and ordered for cancellation of such recruitment, as the

selection process is lacking fair procedure. The Apex Court

observed as follows:

"Recruitment to public services must command public confidence. Persons who are recruited are intended to fulfil public functions associated with the functioning of the Government. Where the entire process is found to be flawed, its cancellation may undoubtedly cause hardship to a few who may not specifically be found to be involved in wrong-doing. But that is not sufficient to nullify the ultimate decision to cancel an examination where the nature of the wrong-doing cuts through the entire process so as to seriously impinge upon the legitimacy of the examinations which have been held for recruitment."

.... where it is possible to segregate persons who have indulged in mal-practices and to penalise them for their wrong- doing, it would be unfair to impose the burden of their wrong-doing on those who are free from taint. To treat the innocent and the wrong-doers equally by subjecting the former to the consequence of the cancellation of the entire process would be contrary to Article 14 because unequals would then be treated equally."

If the principle laid down in the above judgment is applied to

the present facts of the case, when the respondents took up

selection process to provide public employment to the public at

large, change of rules or addition of rules subsequent to

completion of selection process and after issue of appointment

order, cancellation of appointment of this petitioner leads to

Civil Appeal Nos 639-640 of 2021 dated 03.03.2021 MSM,J WP.No.16320 of 2020

serious irregularity, thereby public will lose their confidence in the

selection process for public employment. It creates any amount of

suspicion in adopting such procedure of addition of 15 marks,

more particularly, incorporation of Condition No.(xv) of the terms

and conditions in ROC No.757/2019/A2 dated 08.01.2020 i.e.

posting order, so also obtaining undertaking, though it is not the

prescription or the pre-condition. It is evident from the record that

in the entire process, the respondents violated the procedure.

Obviously for the reasons which could not be explained by the

respondents, the respondents appeared to have invented different

procedure which is not specified in Notification No.4/2019 dated

26.07.2019 to select particular candidate on the pretext of taking

advantage of the Condition No.(xv) of the posting order and

undertaking obtained from the petitioner who is in need of public

employment at that time, to survive himself and live as a human

being with minimum dignity, as enshrined under Article 21 of the

Constitution of India.

Change of Rules subsequent to completion of selection

process or after issuing appointment orders to the selected

candidates is nothing but to change of rules of game after

completion of game or after starting the game, as held by the Apex

Court in catena of judgments referred above.

In N.T. Bevin Katti v. Karnataka Public Service

Commission (referred supra). Where advertisement is issued

inviting applications for direct recruitment to a category of posts,

and the advertisement expressly states that selection shall be

made in accordance with the existing Rules or Government Orders, MSM,J WP.No.16320 of 2020

and if it further indicates the extent of reservations in favour of

various categories, the selection of candidates in such a case must

be made in accordance with the then existing Rules and

Government Orders. Candidates who apply, and undergo written

or viva voce test acquire vested right for being considered for

selections in accordance with the terms and conditions contained

in the advertisement, unless the advertisement itself indicates a

contrary intention. Generally, a candidate has right to be

considered in accordance with the terms and conditions set out in

the advertisement as his right crystallizes on the date of

publication of advertisement, however he has no absolute right in

the matter. If the recruitment Rules are amended retrospectively

during the pendency of selection, in that event selection must be

held in accordance with the amended Rules. Whether the Rules

have retrospective effect or not, primarily depends upon the

language of the Rules and its construction to ascertain the

legislative intent. The legislative intent is ascertained either by

express provision or by necessary implication, if the amended

Rules are not retrospective in nature the selection must be

regulated in accordance with the Rules and orders which were in

force on the date of advertisement. Determination of this question

largely depends on the facts of each case having regard to the

terms and conditions set out in the advertisement and the relevant

Rules and orders. Lest there be any confusion, to make it clear

that a candidate on making application for a post pursuant to an

advertisement does not acquire any vested right for selection, but if

he is eligible and is otherwise qualified in accordance with the

relevant Rules and the terms contained in the advertisement, he MSM,J WP.No.16320 of 2020

does acquire a vested right for being considered for selection in

accordance with the Rules as they existed on the date of

advertisement. He cannot be deprived of that limited right on the

amendment of Rules during the pendency of selection unless the

amended Rules are retrospective in nature.

In B.N. Nagarajan & Ors. v. State of Mysore & Ors7, the

dispute related to the validity of appointment of Assistant

Engineers. The Public Service Commission invited applications by

issuing Notifications for appointment to the post of Assistant

Engineers in October 1958, May 1959 and April 1960. The

Commission made selection, interviewed the candidates and sent

the select list to the Government in October/November 1960. But

before the appointment could be made the Mysore Public Works,

Engineering Department Services (Recruitment) Rules 1960 came

into force which prescribed different provisions than those

prescribed in the earlier Notifications in pursuance whereof the

Public Service Commission had made the selections. The validity of

the appointment made by the Government on the basis of the

selection made by the Commission was challenged. The High Court

quashed the selection and appointments made in pursuance

thereof. On appeal before this Court, validity of the appointment

were assailed on the ground that since the appointments had been

made after the amendment of the Rules the appointments should

have been made in accordance with the amended Rules. A

Constitution Bench of the Apex s Court rejected the contention

holding that since the whole procedure of issuing advertisement,

[1966] 3 SCR 682 MSM,J WP.No.16320 of 2020

holding interviews and recommending the names having been

followed in accordance with the then existing Rules prior to the

enforcement of the amended Rules the appointments made on the

basis of the recommendation made by the Public Service

Commission could not be rendered invalid.

In Secretary, A.P. Public Service Commission v.

B. Swapna (referred supra), the Apex Court held that, once a

process of selection starts, the prescribed selection criteria cannot

be changed. The logic behind the same is based on fair play. A

person who did not apply because a certain criteria e.g. minimum

percentage of marks can make a legitimate grievance, in case the

same is lowered, that he could have applied because he possessed

the said percentage. Rules regarding qualification for appointment

if amended during continuance of the process of selection do not

affect the same. That is because every statute or statutory rule is

prospective unless it is expressly or by necessary implication made

to have retrospective effect. Unless there are words in the Statute

or in the Rules showing the intention to affect existing rights the

rule must be held to be prospective. If the Rule is expressed in a

language which is fairly capable of either interpretation it ought to

be considered as prospective only.

In K. Manjusree v. State of Andhra Pradesh (referred

supra), the Apex Court held that, changing the criteria after

completion of the selection process, when the entire selection was

proceeded, was found to be illegal.

MSM,J WP.No.16320 of 2020

In view of the law laid down by the Apex Court in the

judgments referred supra, change of rules after completion of

selection process and after issue of appointment order and posting

order to this petitioner by incorporating Condition No.(xv) of the

terms and conditions in ROC No.757/2019/A2 dated 08.01.2020

and obtaining undertaking which was not prescribed in the

notification is a serious illegality. Such change of rules of selection

process is not legal and valid and thereby, the consequent

cancellation of appointment of this petitioner based on the

subsequent conditions/rules for selection process is an arbitrary

act of the respondents and violative of Articles 14, 16 and 21 of the

Constitution of India.

Yet, the procedure adopted by the respondents issuing show

cause notice and terminating the services of this petitioner is a

serious illegality, for the reason that, when the petitioner was

appointed without framing any statutory rules, exercising power

under Article 309 of the Constitution of India for selection to the

post of Ward Education & Data Processing Secretary, but based on

executive instructions, the process was taken up and when the

petitioner was appointed and posted by issuing appointment order

and posting order, his services cannot be terminated except by due

process of law, in view of the bar under Article 311(2) of the

Constitution of India. But, taking advantage of Condition No.(xv) of

the terms and conditions in ROC No.757/2019/A2 dated

08.01.2020, the respondents issued show cause notice to this

petitioner and terminated him from service. The notification is

silent as to the probation period of the persons who were selected MSM,J WP.No.16320 of 2020

as Ward Education & Data Processing Secretary. In the absence of

specifying period of probation, the petitioner cannot be said to be a

probationer to discharge him from the services. Even the order of

termination impugned in the writ petition was passed not on the

ground of discharge during probation, but on account of his

disqualification, in view of referring 20 persons to Sports Authority

of Andhra Pradesh after addition of 15 marks and obtaining more

merit by 17 candidates out of 18, than this petitioner. Such

procedure is violative of Article 311(2) of the Constitution of India,

since the petitioner is holding a civil post, thereby the short cut

method adopted by the respondents to terminate the services of

this petitioner by issuing impugned order, taking advantage of

Condition No.(xv) of the terms and conditions in

ROC No.757/2019/A2 dated 08.01.2020 and undertaking dated

22.01.2020 obtained by the respondents from the petitioner is

totally unfair and since the subsequent rules incorporated for the

first time in the posting letter enabling the respondents to cancel

the selection of any particular candidate or termination of services

even without notice is a rule incorporated, which is not prescribed

in the notification, thereby, it is invalid and illegal, in view of the

law declared by the Apex Court in the judgments referred supra.

Hence, I find that the order of termination of the services of this

petitioner by issuing proceedings is illegal, arbitrary and violative

of Articles 14, 16 and 21 of the Constitution of India, as the

petitioner is deprived of his livelihood on account of his

termination from the post of Ward Education & Data Processing

Secretary. Accordingly, the point is answered in favour of the

petitioner and against the respondents.

MSM,J WP.No.16320 of 2020

In view of my foregoing discussion, writ petition is liable to

be allowed, declaring the proceedings in ROC No.757/2019/A2

dated 08.09.2020 issued by the third respondent as illegal,

arbitrary and violative of Articles 14, 16 and 21 of Constitution of

India, setting-aside the same, while directing the respondents to

continue the petitioner in the post of Ward Education & Data

Processing Secretary in pursuance of his selection based on merit

in the first list.

In the result, writ petition is allowed, declaring the

proceedings in ROC No.757/2019/A2 dated 08.09.2020 issued by

the third respondent as illegal, arbitrary and violative of Articles

14, 16 and 21 of Constitution of India, setting-aside the same,

while directing the respondents to continue the petitioner in the

post of Ward Education & Data Processing Secretary in pursuance

of his selection based on merit in the first list.

Consequently, miscellaneous applications pending if any,

shall stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:23.03.2021

SP