Andhra Pradesh High Court - Amravati

M Gururaja Prasad vs Appsc on 6 October, 2021

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       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
               WRIT PETITION No.1875 of 2021
ORDER:

This Writ Petition is filed seeking the following relief:

"....to issue a Writ more in the nature of Writ of Mandamus directing the respondents No.1 and 2 to strictly follow principle of seniority based on merit among direct recruits and not based on roster points in recruitment for fixing seniority between the staff of APPSC particularly the petitioner and 3rd respondent by declaring the impugned proceedings of the 1st respondent No.583/Admin.II/02/2019-2, dated 1.7.2020 and 583/Admin-II/02/2019-3, dt.01.07.2020 as illegal and arbitrary and by setting aside the same in the interest of justice and to pass such other order or orders as this Hon'ble Court may deems fit just and proper in the circumstances of the case."

This Court has heard Sri R. Rajasekhar Rao, learned

counsel for the petitioner, Sri R.V.Mallikarjuna Rao, learned

standing counsel for the 1st respondent, Sri Addanki Sriram

Chandra Murthy, learned counsel for the 2nd respondent and

Sri A. Satya Prasad, learned senior counsel for Sri U.D.Jai

Bhima Rao, learned counsel for the 3rd respondent.

The petitioner before this Court is challenging the two

proceedings dated 01.07.2020, by which the seniority was

changed and the 3rd respondent was placed ahead of him. This

Court has heard Sri R.Rajasekhar Rao, learned counsel for the

petitioner. He submits that both the petitioner and the 3rd

respondents were recruited in the year 1987 in Group IV

recruitment. The petitioner was first in the order of merit and

the 3rd respondent was at Sl.No.9 in the order of merit. The

petitioner, therefore, claims to be always ahead of the 3rd

respondent. It is his contention that the petitioner belongs to

the OC category, whereas the 3rd respondent belongs to S.C.

category. The petitioner continued to work and was given

certain promotions also upto the year 2019. In April, 2014, the

final seniority list was prepared, wherein the petitioner was

ahead of the 3rd respondent and in order of the merit. The

proceedings dated 01.07.2020 were issued by which the said

seniority was undone and the petitioner was placed below the

3rd respondent. Learned counsel points out that the roster

point to which the 3rd respondent belongs cannot be used to

determine the seniority. According to him and as per the law

seniority can only be on the basis of merit only. Roster points

are only for the purpose of allotment of persons to that

particular post. It is reiterated that roster cannot be the basis

for seniority and the 3rd respondent cannot be placed above the

petitioner.

Sri N.A.Ramachandra Murthy appearing for the APPSC

submits that in the year 2014 the selection list of all the

recruitments from the order 1978 had to be redone pursuant

to the orders in OA.No.1268 of 2008 along with C.A.No.767 of

2008 passed by the A.P. Administrative Tribunal. The final

seniority list prepared in the year 2009 was set aside and a

direction was given to the APPSC to redo the selection list.

Accordingly, along with other selections list, the selection list

of Group - IV recruitment in 1987 was recast. It is reiterated

that since third respondent was appointed in a carry forward

vacancy he was placed on top of the list. Learned counsel

argues that some of the employees were also approached the

A.P. Administrative Tribunal by filing O.A.No.2323 of 2014 and

they obtained interim orders. However, those interim orders

later vacated and pursuant to the abolition of tribunal the

matter came to the High Court. He also stated that the 3rd

respondent submitted a petition to the Government that his

seniority may be restored as per G.O.Ms.No.277 and

accordingly the same was drafted.

Sri A. Satya Prasad, learned senior counsel for the 3 rd

respondent argues that it is admitted that the petitioner was

appointed in a carry forward vacancy. Therefore, learned

senior counsel argues that placing the 3rd respondent ahead of

the petitioner is correct. The individual, who is so selected in

a carry forward vacancy, will occupy that slot meant for the

vacancy alone and that preference will be given to him to

occupy that "carry forward slot" withstanding the merit of other

candidates. As the carry forward vacancy is the S.C. slot, the

third respondent is entitled to be placed there. He points out

that in the initial seniority list the 3rd respondent was at Sl.No.1

and the petitioner was at Sl.No.3 and thereafter 2014 list was

prepared which upset the whole calculation. Presently, the

APPSC by following G.O.Ms.No.277 carried out necessary

exercise and corrected the anomaly existing in the seniority list

and placed the 3rd respondent ahead of the petitioner. Learned

senior counsel points out that the 3rd respondent got promoted

in the year 2009, whereas the petitioner was promoted in 2010,

relying upon 1989 list. He submits that all these facts are

suppressed. Relying on G.O.Ms.No.277 sub clause 4 (4)

learned senior counsel argues that when the vacancy will be

carried forward in the recruitment year and it has to be filled

first by a SC ST candidate as the case may be in the succeeding

recruitment year. He relies upon two judgments to support his

submissions viz., State of Tamilnadu and Others v K.

Shobana and Others 1 ; Arti Ray Choudhury v Union of

India and others2 and argued that a carry forward rule has

been recognized and approved by the Hon'ble Supreme Court

of India considering the social philosophy behind the same.

Therefore, learned senior counsel argues that what was done

in this case is in fact correct.

The facts in this case that are not really in dispute are -

(a) the petitioner is ahead in the order of merit is not in doubt.

(b) that the 3rd respondent was initially appointed in a

'carry forward vacancy' is not in doubt.

(Para 3 of the writ affidavit itself says that the 3rd

respondent belongs to SC category and was selected against

carry forward vacancy).

(2021) 4 SCC 686

(1874) 1 SCC 87

Without going further and deeper into the matter this

Court noticed that Clause 4 (iv) and (v) of G.O.Ms.No.273 are

as follows:

"(iv) No gap should be left in the roster for example if a reserved, vacancy, at, say point 22 has to be treated for want of a suitable S.C./S,T candidate, as /un-reserved, the candidate actually appointed will be shown against that point itself. This vacancy will have to be carried forward to the next recruitment year and it has to be filled first by a S.C.S.T candidate as the case may be in the succeeding recruitment year.

(v) At the beginning of each calendar year particulars of reservation brought forward from previous years should be noted in the register. Appointments to such reserved vacancies be made first before the cycle of rotation is continued from the last point of the previous recruitment year."

A simple and plain grammatical reading of this clause

makes it clear that the carry forward vacancy has to be filled

first by an SC ST candidate.

As far as the case law on the subject is concerned the two

judgments cited by the learned senior counsel are in the

opinion of this Court applicable to the facts of the cases. In

paragraph-6 Hon'ble Supreme Court of India considering

Section 27 of the Act of 2016 as applicable to the State of

Tamilnadu and others has held as follows:

"6. Section 27 (f) propagates the social philosophy of vacancies for reserved category not lapsing in case there are inadequate number of candidates. Thus, instead of offering it to the general category, a provision has been made to carry forward those vacancies for one year. In case even in the succeeding year, these vacancies are not

filled in, then it goes to other categories. However, crucial issue arises from the last sentence of the third proviso to Section 27 (f) which provides for the selection of appointment for the next direct recruitment to be made "first for backlog vacancies and then the normal rotation shall be followed: Meaning, thus, has to be assigned to what is implied by the expression "first" vis-à-vis is the backlog vacancies."

Further in paragraph 22 it was held, that in the

subsequent recruitment the backlog vacancies and the current

vacancies for a particular community must be separately

announced and the direct recruitment must be first

accommodated the backlog vacancies and thereafter only the

current vacancies have to be accommodated.

This Court, therefore, is of the opinion that in view of the

above factual and legal position the petitioner has not made

out a case for granting of an order.

Accordingly, the Writ Petition is dismissed. The

contentions of the counsels for the respondents are upheld.

There shall be no order as to costs.