P.Bharath Kumar vs State Of Ap. Anr
2022 Latest Caselaw 4632 AP

          THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

 WRIT PETITION Nos. 2295 + 2495 +2503 +2507 + 2509 + 2542
                     and 2601 of 2016

COMMON ORDER:

      The challenge in all these writ petitions is to the Memo No.

48345/Endt.III/A2/2011,          dated    29.08.2015    issued    by    the   1st

respondent       and     the   consequential   proceedings       vide   Roc.No.

E10/16435/Rcts/2015 dated 13.01.2016 issued by the 2nd

respondent questioning the same as illegal and arbitrary and

consequently to declare the appointment order issued by the 2nd

respondent in favour of the respective petitioners as legal and valid.

2. Since the issue involved in all these writ petitions is one and

the same, the same are heard and are being disposed of by this

common order.

3. The facts in brief are as follows :- On the 2nd respondent

issuing different notifications inviting applications for the post of

different categories, the petitioners herein have applied and after

appearing for written examination and oral interviews were eventually

issued posting orders respectively. Since then they have been working

respectively in their respective posts.

4. While so, the petitioners were issued Show-Cause Notices

dated 13.01.2016 inter alia stating that as the Government rejected

the proposal of the Executive Officer, T.T.D to accord exemption on

one time basis in having appointed the petitioners by operating

waiting list vide Memo No. 48345/Endt.III/A2/2011, dated

29.08.2015 to show cause as to why their services should not be

dispensed with. Aggrieved by the same, the present writ petitions

came to be filed.

5. This Court by way of an interim orders suspended the

impugned show-cause notice and directed the respondents to

continue the petitioners in service.

6. Learned counsel for the petitioners submits that the

petitioners having appeared for written test and thereafter interview,

in pursuance of the appointment order and consequential posting

orders, joined duties in their respective posts at different places, in

T.T.D. Since they have been discharging their duties without any

remarks. The petitioners were issued with proceedings of various

dates stating that the Government of A.P was requested to accord

exemption as one time measure, having appointed the individuals by

operating waiting list and to confirm the said appointment by

resolution and awaitintg orders and that the proposals for

regularization of temporary appointment and declare the individual

petitioners as approved probationers in their respective category

would be considered soon after receipt of the orders from the

Government of Andhra Pradesh.

7. While so, the impugned Show-Cause notices were issued

stating that since the person who was issued appointment order

giving him joining time has not joined the post, the petitioners were

issued appointment orders as the need for filling the respective

subject posts duly operating waiting list; TTD passed resolutions

dated 18.07.2011, 18.08.2011 and 05.11.2011 appraising and

ratifying the appointments of the petitioners and requested the

Government to accord exemption of one time basis having appointed

the individuals by operating waiting list; and that the same was

rejected by the Government vide Memo dated 29.08.2015; and, the

petitioners were asked to show-cause as to why their services should

not be dispensed with.

8. Even at the time of issuance of appointment order, the

petitioners were not communicated that their appointment is in

contravention of the rules and that the Government has to ratify the

same. The action of the respondent in proposing to dispense with the

services of the petitioners at this length of the ground that ratification

was not obtained from the Stage Government is illegal and unjust.

9. The petitioners fully possess the qualifications and are

eligible to be appointed. They participated in the selection in

pursuance of the notifications issued by the TTD. Therefore, their

appointments are legal, justified and cannot be cancelled at this

length of time after having put in more than four years of service. The

Memo dated 29.08.2015 issued by the Government does not assign

any reasons justifying rejection of the request of TTD to grant one

time exemption. The TTD in its representation has specifically stated

that in view of the laborious recruitment process, some of the

candidates have not joined and posts are under emergency service

and keeping in view the interest of pilgrims public, the said posts

were filled up with the immediate merit candidates without waiting for

one more recruitment process. This aspect was not taken into

consideration by the Government. Thus the procedure adopted by the

TTD cannot be termed as illegal and same should have been

considered keeping in view of the fact that 4 years have elapsed since

the candidates have joined the posts.

10. The decisions relied on by the Government, in the impugned

Memo dated 29.08.2015 which reads as follows:

"3. It is well settled that merely because a person have been selected and placed on the select panel, he does not acquire an indefeasible right of being appointed as reported in Shankaran Dash Vs. Union of India, 1991(3) SCC 470.

4. In Rakhi Ray and others Vs. High Court of Delhi and others (2010) 2 SCC 637, the Apex Court has inter alia held that in case the vacancies notified stand filled up, process of selection comes to an end. Waiting list etc., cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/ advertisement. The unexhausted select list/ waiting list becomes meaningless and cannot be pressed in service any more".

5......

6. Government after careful examination of the matter, hereby reject the proposal of the Executive Officer, Tirumala Tirupati Devasthanams, Tirupati, since it is not in accordance with rules, instructions and Court Orders".

Which wholly inapplicable to the facts of the present case.

Further, the G.O.Ms.No.544, dated 04.12.1998 referred on the Memo

stating that by the said G.O an Adhoc rule was issued for

discontinuance of waiting list and the fall out vacancies if any due to

relinquishment and non-joining etc., of selected candidates shall be

notified in the next recruitment has no application to the present

facts of the case in as much as the posts were not kept vacant

without appointing any person in lieu of the persons who was issued

with appointment order did not report for duty and on the other hand

the petitioners were issued appointment orders.

11. Learned counsel for the petitioners further submits that as

per G.O.Ms.No.1060, dated 24.10.1984 rules were framed and Rule

5(i) read as under:

"All powers assigned to the Government under the aforesaid rules shall be exercised by the Board of Trustees. All powers vested in the Head of the Department in the above rules shall be exercised by the

Executive Officer, Tirumala Tirupati Devasthanams. The Executive Officer shall be the appointment authority in respect of all posts except the posts for which Government is the appointing authority".

12. Therefore, as per the above rules, the Executive Officer, TTD

is the appointing authority and has issued the subject appointment

orders in favour of the petitioners and the same is valid for all

purposes. Nowhere in the appointment orders is it stated that the

petitioners were appointed under vacant / waiting list on account of

non-joining of the selected candidates.

13. In support of the contentions, learned counsel relied on the

following decisions in the case of The Andhra Pradesh Public

Service Commission, Rep., by its Secretary, Prathibha Bhavan,

Hyderabad Vs. Ch. Srinivasa Reddy in W.P.No.33042 of 2014,

decided on 29.01.2018; in the case of Jai Narain Ram Vs. State of

U.P and Others1. Further the petitioner relied on a decision of the

Hon'ble Division Bench of erstwhile High Court of Andhra Pradesh in

Writ Appeal No. 1320 of 2016, dated 15.03.2017, wherein it was held

that the impugned order therein is set aside and directed the

respondents to fill up the vacancy as per Roster pint in the

provisional selection list and also placed reliance on the judgment of

this Court in the case of Government of A.P and others Vs. Ms.

Bhagam Dorasanamma and another2 to substantiate the case of

the petitioners.

14. Learned Government Pleader while reiterating the

averments on the counter filed by the 1st respondent submits that the

1996(1) SCC 332

W.P.No. 24944 of 2013, dated 26.08.2013

TTD has conducted a massive recruitment drives from 2010 for filling

the vacancies in different categories under Direct Recruitment duly

following the method of recruitment as specified in the TTD Service

Rules. A notification was issued on 12.07.2010 to fill the posts of

Junior Assistant (99 posts), Typist (37 posts), Assistant/ Shroff (26

psots), U.D.Steno (15 posts) and L.D.Steno (9 posts). In response to

the notification, more than one lakh applications were received. The

TTD management has initiated an organized strategy with an

involvement of all TTD management has initiated an organized

strategy with an involvement of all Heads of the Departments of TTD

and others Governments/ organizations like Heads of the

Departments of TTD and others Governments/ organizations like IIM,

NIC and District administration. The private educational institutions

in and around Tirupati were also utilized as centers for conducting

written test.

15. It is further contended that the process of recruitment took

nearly six months and completed the selection process in transparent

manner. The administration has spent more time in effective

conduction of recruitment process during the above six months. TTD

has spent a considerable amount for the above exercise. But the

laborious process has not resulted in filling up a all the posts inspite

of heavy competition and much strain faced by the administration.

The main constraint was non-operation of waiting list. To fill the post,

re-notification was the only option left to the administration. If re-

notified, irrespective of number of vacant posts the heavy competition

and conduction of recruitment process is certainly a burden to the

institution like TTD, which is concentrating on temple administration

and service to the visiting pilgrims.

16. To Avert re-do of exercise of recruitment process with

financial impact to fill the ne or two posts, the management has taken

a conscious decision to operate wait list and filled the posts which

was left vacant due to non-joining of selected candidates in turn it

has relieved the administration from spending more time in

recruitment process with financial commitment.

17. Further contended that the issue of operating of wait list

was brought to notice of the TTD Board and sought for approval

requesting the Government to grant one time exemption for operation

of wait list. The Executive Officer, TTD has submitted proposals to the

Government to accord exemption on one time basis in having

appointed certain petitioners by operation of wait list, besides

extending joining time in favour of one petitioner. The Government

vide Memo No. 48345/ENDT.III/A2/2011, dated 29.08.2015 have

rejected the proposal of the Executive Officer, TTD, since it is not in

accordance with rules, instructions and court orders and having

referred to the relevant rules and the decisions of the Apex Court.

18. The Executive Officer TTD have issued Show-Cause Notices

to the petitioners as to why their services should not be dispensed

with vide Proceedings in Roc No. 16435/Rcts/2015, dated

13.01.2016. Assailing the said orders the petitioners have filed

various writ petitions and this Court has issued interim suspension

and direction as prayed for. The petitioners are being continued

subject to result of the writ petitions. Further the TTD Board

requested the Government to grant one time exemption as a special

case in lieu of G.O.Ms.No.544, General Administration (Ser.A)

Department, dated 04.12.1998. The TTD Board in its Res.No.73,

dated 23.10.2019 resolved as deferred.

19. Further the Executive Officer, TTD have operated the

waiting list in contrary to G.O.Ms.No. 544, G.A (Ser-A) Department,

dated 04.12.1998 and has submitted a proposal to accord exemption

on one time basis in having appointed the petitioners by operation of

wait list, besides extending joining time in favour of one petitioner.

Government after examining the matter have rejected the proposal of

the Executive Officer, since it is not in accordance with rules,

instructions and Court orders vide Memo No.

48345/ENDT.III/A2/2011, Revenue (Endowmenets.III) Department

dated 29.08.2015.

20. It is further contended that there is inherent powers and

TTD is an autonomous body and not held by the Government. APPSC

rules ipso facto has no application. Learned counsel placed reliance

on the decision in the case of Krishna Devi Malchand Kamathia &

Ors. Vs. Bombay Environmental Group and others3 wherein it was

held that the doctrine of merger has no role. The party had to

approach the appropriate court, hypothetically it is nullity, if the

court refuses to quash the same. Further the Hon'ble Supreme Court

in the case of Shankarsan Dash Vs. Union of India4 at Para 7 it was

held as follows:

"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates found fit, the successful candidate acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the

I.A.No. 23 of 2010 in Civil Appeal No. 4421 OF 2010

Civil Appeal No. 8613 of 1983, dated 30.04.1991

vacancies has to be taken bonafide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted."

21. The decision had to be taken bonafide. The State is bound

to respect and this does not counter falls following Memo refer to G.O

and the same is not being challenged. Further show-cause notice not

answered without exhausting remedies available under Article 226 of

the Constitution of India. Therefore any appointments either direct or

contract based appointments, the TTD Rules applies, but not APPSC

Service Rules. The petitioners have not followed the G.O.Ms.No.544.

Therefore the Writ Petitions are liable to be dismissed.

22. Per contra, learned counsel for the petitioners would

contend that G.O.Ms.No. 544 is not applicable, because the State and

Service Rules cannot contemplate the procedure. Therefore selection

does not confer any right. Appointment confers indefeasible right. The

decisions referred by the learned Standing Counsel for the

respondents/ TTD have no relevance and no need to challenge the

G.O.Ms.No.544, since the Government is only for fixing the cadre and

not an appointing authority. Therefore, requested to allow the writ

petitions.

23. The other factor which the State is required to keep in mind

while creating or abolishing posts is the financial implications

involved in such a decision. The creation of posts necessarily means

additional financial burden on the exchequer of the State. Depending

upon the priorities of the State or TTD, the allocation of the finances

is no doubt exclusively within the domain of the Legislature/ TTD.

However in the instant case creation of new posts would not create

any additional financial burden to the respondent/ TTD as the

respondent/ TTD at whose disposal the services of each of the

petitioners are made available have agreed to bear the burden. If

absorbing the petitioners into the services of the TTD and providing

benefits at par with the other similar rank employed by the TTD

results in further financial commitment it is always open for the TTD

to demand the respondent/TTD to meet such additional burden.

Apparently no such demand has ever been made by the respondent.

In the case of Nihal Singh and Others Vs. State of Punjab and

others,5 wherein the Hon'ble Supreme Court also discussed the same

lines. The Umadevi's6 judgment cannot become a license for

exploitation by the respondent and its instrumentalities.

24. Elaborating upon the principles laid down in Umadevi's

case and explaining the difference between irregular and illegal

appointments in State of Karnataka v. M.L. Kesari7, this Court

opines that it is evident from the above that there is an exception to

the general principles against regularization enunciated in Umadevi's

case, if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the

(2013) 14 SCC 65

(2006) 4 SCC 1 : 2006 SCC (L&S) 753

(2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826

process of open competitive selection, such appointments are considered to be irregular.

25. For all the above mentioned reasons, this Court is of the

considered opinion that the petitioners are entitled to claim the relief

as sought for in the writ petitions. The writ petitions are accordingly

allowed. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

also stand closed.

__________________________________ DR.JUSTICE K. MANMADHA RAO Date: 26.07.2022.

KK

THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

WRIT PETITION Nos. 2295 + 2495 +2503 +2507 + 2509 + 2542 and 2601 of 2016

Date: 26.07.2022.

KK