Amruthapudi Ashalatha, vs The State Of Andhra Pradesh
2022 Latest Caselaw 3036 AP

         HON'BLE DR. JUSTICE K. MANMADHA RAO

                 WRIT PETITION No.6676 of 2020
ORDER :

This petition is filed under Article 226 of the Constitution

of India for the following relief:-

"...to issue an appropriate Writ Order or Direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd respondent herein in issuing the impugned order bearing Procs Rc. No ESE0220021/ 22/2020TETCSE, dated 2.3.2020 rejecting the request made by the petitioner for considering her candidature for selection to the post of Trained Graduate Teacher Social Studies in Zone- III under SC Category on the ground of not attending for certificate verification, as being illegal, arbitrary, unjust and contrary to Rules framed under G.O.Ms.No.68, dated 26.10.2018 and consequently set aside the same by directing the respondents to consider the case of the petitioner for selection as Trained Graduate Teacher Social Studies in A P Residential School, Tadikonda in the existing vacancies and pass such other order or orders......."

2. The case of the petitioner is that the 1st respondent

has issued G.O.Ms.No.68, School Education (Exams)

Department dated 26.10.2018, the Andhra Pradesh Teacher

Recruitment Test (TRT) for the post of Principals, Post

Graduate Teachers (PGTs) Trained Graduate Teachers )TGTs)

Physical Education Teachers(PETs) Crafts, Art and Music

Teachers, the department has framed certain rules for Teacher

Recruitment Test (TRT) to the post of Teacher in the schools of

Andhra Pradesh and issued a Notification vide G.O.Ms.No.68,

dated 26.10.2018. In pursuance of the orders of the

Government issued in the above G.O.Ms.No.68, applications

are invited through online for recruitment to the posts of

Principals, Post Graduate Teachers (PGTs) Trained Graduate

Teachers (TGTs) Physical Education Teachers (PETs) Crafts, Art

and Music Teachers in the A.P. Model Schools, A.P. Residential

School and A.P., B.C. Welfare Residential Schools in the State.

The petitioner has submitted her application for the post

of School Assistant (Social studies) and appeared in the TRT

Exams-2018 with Hall ticket No.18072210000316 and she got

63 Rank and provisionally selected for the post of Trained

Graduate Teacher (Social Studies) in Roster Point No.2 (SC-W-

Local) in Zone-III and she belongs to SC-W category.

Subsequently, the Department has issued called letters to all

the candidates who were provisionally selected for the post of

Trained Graduate Teachers , but the petitioner did not receive

any message or call letter about the selection in Zone-III under

phase-III in MJPAPBCWREIS Boys Management in order to

attend the counseling. Accordingly, the petitioner has

submitted a detailed representation to the 2nd respondent on

28.01.2020. Subsequently, the 2nd respondent has issued

speaking orders on 02.03.2020 stating that inter alia that as

per Rule 18(v) in G.O.Ms.No.68, School Education (Exams)

Department, dated 26.10.2018, if the candidate fails to

produce the certificates required at the time of verification or if

the candidate is absent for verification of certificates, such

candidates shall forego the right of selection, and next eligible

candidate shall be considered for certificates verification and

that accordingly the 4th respondent who secured 64th rank, was

selected and appointment orders were issued. Challenging the

said proceedings dated 02.03.2020, present writ petition is

filed.

3. Counter affidavit is filed by the 2nd respondent

denying all the averments made in the petition and contended

that as per the Rule 18(vi) in G.O.Ms.No.68, School Education

(Exams) Department, dated 26.10.2018 "If the certificates are

not found to be genuine/correct and if the candidate fails to

produce the certificates required at the time of verification or if

the candidate is absent for verification of certificates, such

candidates shall forego the right of selection and the next eligible

candidate shall be considered for certificates verification"

generated the next provisional selection lists (i.e., 4th to 6th

lists) with the next meritorious candidate with Rank No.64

under Zone-III was selected and issued appointment orders by

the Secretary, MJPAPBCWREIS on 22.12.2019. There is no

base in the contention of the petitioner that no communication

was sent by this respondent, wherein on 13.11.2019 itself this

respondent has sent communication to the petitioner vide Bulk

SMS to her registered mobile No.9502394919.

It is further stated that only 20 vacancies are notified

under APRIES and all are state wise posts and petitioner has

secured state Rank No.270 under SC (W) whereas the last

selected candidate under same category ie.., SC(W) was

Bandlamudi Krishna Kumari has secured state Rank No.230

and joined in the post and as are some other candidates also

who secured ranks above the petitioner. In fact the exams

were conducted on only computer based exam and that the

petitioner is not verifying the status of the selection list and

having no knowledge about the selection list is not a

considerable reason to consider the case of the petitioner and it

is also stated that the petitioner has not filed any material to

show that she did not receive any SMS on that day except

making representation dated 28.01.2021.

It is further stated that the recruitment process was

already completed duly following the prescribed norms

mentioned in notification. Though the petitioner was absent

on the date of counseling, there are also candidates who

secured better rank and have not come under zone of selection

as only 20 posts were notified. Further, at the time of passing

interim orders, the recruitment process was already completed

and no vacancies left to reserve one post to the petitioner. in

view of the above reasons, prayed to dismiss the writ petition.

4. Heard Mrs. Kavitha Gottipati, learned counsel for the

petitioner and learned Government Pleader appearing for the

respondents.

5. Learned counsel for the petitioner submits that the

petitioner did not receive any message or call letter about the

selection and that it is also referred to in the impugned order

dated 02.03.2020, but the 2nd respondent except quoting the

rule stating that if the candidate is absent for certificates

verification, candidate shall forego right of selection.

6. Learned Government Pleader appearing for the

respondents submits that the petitioner did not attend the

counseling on two occasions and hence, next meritorious

candidate was given appointment order.

7. On a perusal of the material available on record, this

Court vide order dated 2205.2020 granted interim direction

and the operative portion of the order, reads as under:

"..... In view of the same, the respondents are directed to reserve one post of Trained Graduate Teacher (Social Studies) in Zone-III under SC category..."

8. On hearing, this Court observed that the petitioner

has appeared for TRT Exams-2018 and she got Rank 63 and

provisionally selected for the post of Trained Graduate Teacher

(Social Studies) in Roster Point No.2 (SC-W-Local) in Zone-III.

However, she did not get any call letter or message about the

selection in order to attend the counseling (certificate

verification process) from the Department. Moreover, the

department has selected the 4th respondent who got Rank

No.64 under Zone-III and issued appointment order dated

22.12.2019. Thereafter, the petitioner made a representation

dated 28.01.2010 to the 2nd respondent but the same was

rejected vide impugned order dated 02.03.2020.

9. Undoubtedly, communication made by SMS through

mobile or computer is an electronic message. But, electronic

message is not defined under the Information Technology Act,

2000 (for short "the Act"). However, "electronic record‟ is

defined under Section 2(t) of the Act, which means electronic

record means data, record or data generated, image or sound

stored, received or sent in an electronic form or micro film or

computer generated micro fiche. SMS allegedly sent by the 2nd

respondent to the petitioner would fall within "electronic

record" through a communication device as defined under

Section 2(ha). According to Section 2(ha) of the Act,

communication device means cell phones, personal digital

assistance or combination of both or any other device used to

communicate, send or transmit any text, video, audio or image.

Therefore, the message sent either through cell phone i.e.,

communication device as defined under Section 2(ha) is only

an electronic record as defined under Section 2(t) of the Act; by

the originator as defined under Section 2(za) of the Act.

According to Section 2(za), "originator" means a person who

sends, generates, stores or transmits any electronic message or

causes any electronic message to be sent, generated, stored or

transmitted to any other person but does not include an

intermediary. Therefore, the IT cell of the 2nd respondent is

the originator who allegedly sent the "electronic message" to

the addressee - the petitioner herein, as defined under Section

2(b) of the Act. According to Section 2(b), addressee means a

person who is intended by the originator to receive the

electronic record but does not include any intermediary. Thus,

it is clear from the definitions of "electronic record",

"communication device", "originator" and "addressee", that the

petitioner is the addressee and the 2nd respondent is the

originator, who sent information through communication

device as defined under Section 2(ha) of the Act. Such

information can be said to be an electronic record as defined

under Section 2(t) of the Act.

10. Section 12 of the Act deals with "Acknowledgment of

receipt" and it is necessary to extract the same for better

appreciation of the contentions of both parties. Accordingly, it

is extracted hereunder:

(1) Where the originator has not 3 [stipulated] that the acknowledgment of receipt of electronic record be given in a particular form or by a particular method, an acknowledgment may be given by-- (a) any communication by the addressee, automated or otherwise; or (b) any conduct of the addressee, sufficient to indicate to the originator that the electronic record has been received.

(2) Where the originator has stipulated that the electronic record shall be binding only on receipt of an acknowledgment of such electronic record by him, then unless acknowledgment has been so received, the electronic record shall he deemed to have been never sent by the originator.

(3) Where the originator has not stipulated that the electronic record shall be binding only on receipt of such acknowledgment, and the acknowledgment has not been received by the originator within the time specified or agreed or, if no time has been specified or agreed to within a reasonable time, then the originator may give notice to the addressee stating that no acknowledgment has been received by him and specifying a reasonable time by which the acknowledgment must be received by him and if no acknowledgment is received within the aforesaid time limit he may after giving notice to the addressee, treat the electronic record as though it has never been sent."

11. On close analysis of Sub-section (2) of Section 12,

where the originator has stipulated that the electronic record

shall be binding only on receipt of an acknowledgment of such

electronic record by him, then, unless acknowledgment has

been so received, the electronic record shall be deemed to have

been never sent by the originator. Sub-section (3) of Section 12

says that, where the originator has not stipulated that the

electronic record shall be binding only on receipt of such

acknowledgment, and the acknowledgment has not been

received by the originator within the time specified or agreed

or, if no time has been specified or agreed to within a

reasonable time, then the originator may give notice to the

addressee stating that no acknowledgment has been received

by him and specifying a reasonable time by which the

acknowledgment must be received by him and if no

acknowledgment is received within the aforesaid time limit he

may after giving notice to the addressee, treat the electronic

record as though it has never been sent.

12. Here, there was no stipulation by the originator that

the electronic record shall be binding only on receipt of such

acknowledgment. In such case, Section 12(3) of the Act is

applicable and when no acknowledgment was sent by the

originator i.e., the 2nd respondent within the time specified,

originator is under obligation to give notice to the addressee to

treat the electronic record as though it has never been sent.

Electronic record received or acknowledged by the addressee

though it was never been sent.

13. In the instant case on record, admittedly the

originator - the 2nd respondent did not issue any notice to the

addressee - petitioner herein giving intimation about sending

of electronic record by communication device. Therefore, when

the respondent failed to follow the procedure under Section

12(3) of the Act, the Court cannot presume that the SMS were

sent to the petitioner i.e. addressee. In the absence of

compliance of mandatory requirement under Section 12(3), this

Court is not unable to accept the contention of the 2nd

respondent that the SMS is deemed to be served on the

addressee i.e., the petitioner herein, relying on the judgment of

the Apex Court in State of Uttar Pradesh v. Pankaj Kumar1

14. The main endeavour of this petitioner in the

Information Bulletin, it is specifically stated that, the

communication will be sent through SMS to the candidate on

providing mobile number to the recruiting authority i.e., 2nd

respondent. On verification of entire Information Bulletin,

there is nothing specifically directing the petitioner to furnish

mobile number to communicate the information about process

of recruitment. Clause No.20 (iv) of the Information Bulletin

was relied on by the second respondent, since the petitioner

failed to submit sub-caste certificate.

15. Undoubtedly, Clause No.20 (iv) is incorporated in the

Information Bulletin. According to it, after preparation of

provisional merit-cum-roster list, the candidates are required

to furnish original qualification certificates and failure to

furnish the same, disqualifies such candidate for selection. In

the absence of any specific direction for providing mobile

number for communication purpose, mere providing a column

for furnishing mobile number in the application form without

providing a column for sub-caste in the application, the

contention of the 2nd respondent is rejected, as the petitioner

Civil Appeal No.6860 of 2021, dated 18.11.2021

was not required to mention and submit sub-caste certificate

in support of it. Even the application discloses the mobile

number of this petitioner. But, it is silent that the

communication will be sent only through the said mobile

number.

16. This Court further observed that the petitioner is a

woman belonging to SC Community, mostly residing in a

remote place and living below poverty line. Such persons are

not expected to maintain network, accessing to the helpline

provided by the official respondents to get updated about the

process of recruitment. Therefore, it is difficult to attribute any

knowledge to this petitioner about requirement to submit sub-

caste certificate under Scheduled Caste Quota to claim benefit

of reservation under SC quota.

17. In view of the foregoing discussion and upon

considering the submissions made both the learned counsels,

this Court is of the considered view that while disposing of the

writ petition setting aside the impugned order vide Proc.Rc.No.

ESE02-20021/22/2020-TET-CSE, dated 02.03.2020 issued by

the 2nd respondent, directing the concerned respondent

authorities to appoint this petitioner as Trained Graduate

Teacher (Social Studies) in A.P. Residential School, Tadikonda

in the existing vacancy, at appropriate roster point, giving

benefit of notional seniority from the date when less

meritorious candidates to the petitioner are appointed.

However, the petitioner is not entitled to claim monetary

benefit, as she was not appointed to the post on the principle

of NO WORK - NO PAY.

18. Accordingly, the Writ Petition is disposed of. There

shall be no order as to costs.

As a sequel, interlocutory applications, if any pending,

shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date : 29-06-2022 Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

WRIT PETITION No.6676 of 2020

Date : 29-06-2022

Gvl