Andhra Pradesh High Court - Amravati
K. Balaji Naveen Kumar vs State Of Andhra Pradesh on 28 October, 2022
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No.10669 of 2020
ORDER:
The present Writ Petition is filed under Article 226 of
Constitution of India for the following relief/s:
"....to issue a Writ, Order or direction more particularly in
the nature of Writ of Mandamus declaring the proceedings
dated 05.01.2019 vide No.Proc.Roc.No.9054/BII/B2/2018-
4 issued by the respondents in selecting and issuing
appointments is arbitrary, illegal colourable exercise and
violative of Articles 14 and 16 of Constitution of India and
quash or set aside the same and to issue a consequential
direction to the respondents to prepare select list by taking
into consideration the conditions in G.O.Ms.No.52 dated
28.10.2016 and following the rule of reservation as per
merit and to pass such other order or orders ...."
2. Heard learned counsel for the petitioner and learned
Government Pleader for Animal Husbandry appearing for the
respondents.
3. The 1st respondent issued notification on 19.11.2018 for
recruitment of (247) Veterinary Assistant Surgeon (VAS) under
category (6) of Class-A in Animal Husbandry Department under
Government of Andhra Pradesh. The total number of posts
notified in the State of Andhra Pradesh is 247, out of which, 72
posts are notified in Zone-IV. The posts of Veterinary Assistant
Surgeons (VAS) are Zonal posts earmarked for various
categories. Out of 72 posts, 5 posts are earmarked for BC-A.
4. The contention of the petitioner is that the selection
process for appointment to the posts of veterinary Assistant
Surgeon is governed by G.O.Ms.No.52, dated 28.10.2016. The
respondents issued a selection list of candidates without
showing merit marks for Zone-IV vide Memo
No.Proc.No.9054/BII/B2/2018-4 for 63 candidates only. As per
the conditions in the afore stated G.O., the selection is based on
marks as per their qualifications, experience and seniority after
graduation. The petitioner secured 54.8 points as per the
procedure contemplated under the G.O.
5. The main grievance of the petitioner is that, the person
who secured more marks under BC-A category, comparative to
open category has given appointment under reserve category, he
would be considered under open category. Therefore, the
Petitioner was deprived to get the selection for the notification
issued. The person who secured more marks is entitled to be
admitted on the basis of his own merit, then such admission
should not be counted against the quota reserved for BC-A.
Aggrieved by the same, the present Writ Petition got to be filed.
6. Per contra, the 2nd respondent filed counter affidavit.
Para No.9 of the counter, reads as follows:-
"It is respectfully submitted that as per Rule 22 (a) and (e)
of Andhra Pradesh State and Subordinate Service Rules,
1996 a (100) cycle Roster points are prescribed and also
framed the Rules that the special category like SC, ST, BC
and PH roster point shall be filled up with the candidates
that particular category duly observing the merit list in OC
category are merit candidates are eligible and hence, the
candidates are not considered as the petitioner was secured
only 54.8 point. The highest merit point in OC category is
55.22 and the least point in BC-A category is 56.08. (The
copy of merit list is enclosed for Zone-IV)"
7. The contention of the petitioner is that the respondent
authorities while making appointments have not strictly
followed the instructions issued by the Government in the
indicated G.O. When the selection was made, the candidate
who belonging to backward classes got selected in the general
category and while making appointments, these candidates for
selection to the open merit quota were to be treated as general
candidates as they should be appointed on the basis of the
ranking list prepared in the merit.
8. The pivotal contentions of the petitioner is that the
meritorious reserved category candidate is entitled to be
admitted on the basis of merit, though belonging to reserved
category cannot be considered to be admitted against posts
reserved for the reserved category.
9. The petitioner relying on the judgment of Anurag Patel
would contend that the candidates hailed from backward classes
who secure higher marks than the cut of marks for the general
category also must have got selection in the general category
even though they belongs to the backward classes. The
candidates who belongs to backward classes got selection in the
general category are allowed to exercise preference and they are
appointed accordingly the candidates who were appointed in the
reserved category would be pushed down in their post and the
vacancies thus left by the general category candidates belonging
to backward classes could be filled up by the persons who are
really appointed against the quota reserved for Backward
Classes. Then there will not be any change in the total number
of posts filled up either by the general category candidates or by
the reserved category candidates.
10. The Hon'ble Apex Court in Alok Kumar pandit v. State of
Assam and others 1 after following the judgments in Indra
Sawhney v. Union of India2, R.K. Sabharwal v. State of Punjab3,
(2012) 13 Supreme Court Cases 516
(1992) Supp (3) SCC 217
(1995) 2 SCC 745 : 1995 SCC
State of Bihar v. M. Neethi Chandra4, Anurag Patel v. U.P. Public
Service Commission5, held that the reserved category candidates
who were meritorious than open category candidates but were
appointed against the reserved category posts should be deemed
to have been appointed against the post earmarked for the open
category and they cannot be treated as appointed against the
posts earmarked for the reserved category. And turned out the
contention that the entitlement of more meritorious candidates
of reserved category to opt for the reserved category posts is
inconsonance with the law laid down by this Court and the
appellant who is less meritorious reserved category candidate
cannot claim appointment to the State services, because, that
would amount to violation of rights of more meritorious
candidates of his own category.
11. Once, the reserved category candidates secure higher
merit than the open category candidates he can be considered
for the appointment only against open category post and the
quota of the particular reserved category cannot be reduced by
treating his appointment as one made against the post
earmarked for the reserved category to which he belongs.
(1996) 6 SCC 36
(2005) 9 SCC 742
12. In Anurag Patel case, after noticing judgments in Ritesh R.
Sah v. Dr. Y.L. Yamul and State of Bihar v. M. Neethi Chandra
the Hon'ble Apex Court was called upon to consider whether
more meritorious candidates of reserved category who were
adjusted against the posts earmarked for general category were
not entitled to make a choice of the post earmarked for reserved
category. And also upheld the finding of the Division Bench of
the High Court wherein it was held that it is a clear injustice to
the persons who are more meritorious and directed that a list of
all selected backward class candidates shall be prepared
separately including those candidates selected in the general
category and their appointments to the post shall be made
strictly in accordance with merit as per the select list and
preference of a person higher in the select list will be seen first
and appointment given accordingly.
13. Admittedly, as per the counter affidavit, the highest merit
point in OC category is 55.22 and the least point in BC-A
category is 56.08. As per the counter affidavit, if the BC-A
category got higher marks will be placed in the general category,
the petitioner would get a post as Veterinary Assistant Surgeon.
In view of the non application of the sliding system, in the
present case the petitioner was deprived of the post.
14. It is further contention of the respondents that as per the
Rule 22 (a) and (e) of Andhra Pradesh State and Subordinate
Service Rules, 1996 a (100) cycle Roster points are prescribed
and also framed the Rules that the special category like SC, ST,
BC and PH roster point shall be filled up with the candidates
that particular category duly observing the merit list in OC
category are merit candidates are eligible and hence, the
candidates are not considered as the petitioner was secured
only 54.8 point. The highest merit point in OC category is 55.22
and the least point in BC-A category is 56.08. Total 5 posts
were earmarked for BC.A category as per the roster point out of
the said 5 posts 3 posts are for BC-A general category and 2
posts for women candidates. In these BC-A category the
following candidates are selected.
45 BC-A(W) 22 Pandikunta Swetha BC-A(W) 58.84
BC-A 28 Maneri Swarnalatha BC-A(W) 57.51
BC-A 29 Talupuru Sai Urmila BC-A(W) 57.34
BC-A 40 Chakalai Eresha BC-A 56.39
BC-A(W) 44 Boya Sunil Kumar BC-A 55.94
The petitioner Sri Balaji Naveen Kumar has got 54.8
points only, the other candidates belonging to BC-A category are
secured more points than the petitioner. Hence, the
candidature of the petitioner was not considered to the post of
Veterinary Assistant Surgeon.
15. The contention of the petitioner is that the respondent
ought not to have been applied the roster point prior to the final
selection list. That in applying the communal roster at the time
of final selection only that the question of applying the roster to
follow the rule of reservation will assign at time of final selection
and not for shortlisting the candidates for the purpose of oral
test. Applying the roster system in shortlisting the candidates
after applying the Rule of reservation even before list of viva
voce or at the time of the viva voce amounts to blunder. By
applying the roster, the rule of reservation will arise only at the
time of final selection. They cannot take the roster point prior
to the selection list which has been applied in the present case
as per the counter and it is contrary to Rule 22 A of the Andhra
Pradesh State and Subordinate Service Rules, 1996. For the
foregoing reasons, the selection is contrary to the Rule of
Reservation and the judgments stated supra.
16. The case of the petitioner is that if the meritorious BC-A
candidate is allotted a post in the general category as per his
merit and the petitioner would get an appointment as Veterinary
Assistant Surgeon.
17. In view of the non application of reservation in accordance
with the cited judgments, the petitioner was deprived of the
post, is the case of the petitioner.
18. In view of the same, the respondents are hereby directed
to redraw the merit list while considering the candidates of
reserved category against unreserved post as per the merit and
thereafter remaining candidates of the reserved category shall
be considered against the quota of reservation prescribed
according to the Rules. By applying the said principle, the case
of the petitioner shall be considered by redrawing the merit list.
Entire exercise shall be completed within a period of three
months from the date of receipt of a copy of this order.
19. Accordingly, the Writ petition is disposed.
Miscellaneous Petitions pending, if any, shall stand
closed.
_______________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date: 28-10-2022
Harin
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
W.P.No.10669 OF 2020
Date: 28-10-2022
Harin
