Maloth Vinod Kumar vs The State Of Andhra Pradesh
2022 Latest Caselaw 6918 AP

       HON'BLE DR. JUSTICE K. MANMADHA RAO

              WRIT PETITION No.4791 of 2022


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 actions of the Respondents in not filling up the 39 notified /vacant posts in DSC 2018 for the Subject Posts in East Godavari District under GPA and Tribal Schedule category, as illegal, arbitrary, discriminatory, unconstitutional and contrary to the settled principles of law and consequently direct the Respondent to fill the 39 notified/vacant posts in DSC 2018 for the Subject Posts in the East Godavari District and pass such other order or orders......."

Brief facts of the case are that a few of the petitioners

have provisionally been selected for the notified 39 posts in

DSC 2008 which were reserved in the East Godavari District

for the subject Posts under the GPA and Tribal Schedule

category. Other petitioners are next in line and potential

candidates who would be selected if the recruitment process

is started. The Government of Andhra Pradesh through the

School Education Department issued a notification for

teacher recruitment for the posts of school assistants,

language pundits, secondary grade teachers, physical

education teachers, music teachers, craft teachers, art and

drawing teachers vide Notification No.768/TRC-1/2018,

dated 26.10.2018. It is further stated that the petitioners

being eligible candidates for the notified posts, applied for

the subject Posts in pursuance of the DSC 20018 issued by

the respondents.

The petitioners have participated in the written test as

scheduled by the Government of A.P. for the subject posts.

But the results were not declared due to non-related

litigation. On 17.12.2021 the Government of AP instructed

all the District Educational Officers in the State vide Memo

dated 17.12.2021 directing to fill up all the categories of

unfilled vacancies under DSC 2018. A few of the petitioners

have got SMS from the respondents requesting them to

appear before the concerned officials for the certificate

verifications. However, the petitioners were orally informed

at the concerned location for verification that the vacancies

would not be filled up in view of the judgment of the Hon'ble

Supreme Court in Civil Appeal No.3609 of 2002 and 7049 of

2002 dated 22.4.2020, wherein it was held that the

appointments made pursuant to G.O.Ms.No.3 dated

10.01.2000 issued by the State of A.P providing 100%

reservation of the ST candidates would be saved. But the

judgment of Hon'ble Supreme Court referred to above is not

applicable in the present case and the posts which were

notified in the year 2018 and to which examination was

already conducted shall be regulated by the laws applicable

at that point in time. Questioning the action of the

respondents, the petitioners filed the present writ petition.

3. Counter affidavit is filed by the 4 th respondent

while denying all the allegations made in the petition

contended that as per the Supreme Court judgment on

G.O.Ms.No.3 Social Welfare (TW.SER.II) department, dated

10.01.2000 in Civil Appeal No.3609/2002 and 7040/2002,

dated 22.04.2020 all those appointments made in excess of

50% from 1986 upto the date of judgment are saved. Any

appointment made in excess of 50% rule after 22.4.2020 is

violation of the Supreme Court judgment and as such not

sustainable and in view of the condition imposed by the

Supreme Court while saving the appointment made in

excess of 50%, directed not to make any future

appointments from the said list of DSC 2018 if it is not

already done. It is further stated that the Director, Tribal

Welfare, A.P. has addressed a letter vide Lr.Rc.No.

(1144267)SOWO3-14021(32)/12/2020-K SEC, dated

22.06.2021 to the Director of School Education, A.P.

requested to follow the said Govt. Memo for further

appointments in DSC 2018 in respect of Scheduled area

without fail. In view of the clarification issued by the Tribal

Welfare Department, the respondents have issued certain

instructions vide Memo No.ESEO1-SEDNOCSE(RECT)/

96/2021-Exams, dated 10.12.2021 to the Director of School

Education, A.P. to follow the instructions issued in the

Government Memo No.1265257/TW.Edn.1/2020, dated

18.04.2021 for further appointments of teachers in DSC

2018.

The 3rd respondent has communicated the above

instructions vide ESEO2-20021.26/2019 RECTMT-CSE,

dated 20.12.2021 for taking necessary action as directed by

the Government to fill up of vacancies of DSC 2018 and

requested to follow the said orders scrupulously without fail

and without any deviation.

4. Additional counter affidavit is filed by the 4th

respondent on behalf of the respondents No.2 and 3

reiterating all the averments made in the counter affidavit

and contended that after receipt of the instructions of the 3rd

respondent dated 20.12.2021 the respondents have not

taken up any counseling for appointments to the any tribal

area including School Assistant (Telugu) and Language

Pandit (Telugu). The selection list of candidates would be

discontinued of operation waiting list vide G.O.Ms.No.554,

GEN (Admn.) Department, dated 4.12.1998. The

appointments are issued in various dates in the July 2021

by the time the 4th respondent has no knowledge with regard

to orders of Hon'ble Supreme court. It is further stated that

there were strict instructions not to take up any further

selection of candidates pertaining to DSC 2018 or otherwise

serious action be taken on the officers and accordingly

further selection are stopped.

5. Heard learned counsel appearing for the petitioners

and the learned Government Pleader for Social Welfare

appearing for the respondent No.1 and learned Government

pleader for School Education appearing for the respondents

No.2 to 4.

6. Learned counsel for the petitioners argued that the

Hon'ble Supreme Court directed that the appointments

made pursuant to G.O.Ms.No.3 dated 10.01.2000 issued by

the State of A.P. providing 100% reservation to the ST

candidates would be saved. The application of the

directions in the judgment was only prospective in nature

and the retrospective application has been specifically

excluded form the judgment. The judgment also saved all

the appointments made by the State of A.P before the

judgment was pronounced. He further argued that in the

present case the posts were notified in the year 2018 under

the DSC 2018. The judgment of the Hon'ble Supreme Court

is not applicable in the present case and the posts which

were notified in the year 2018 and to which examination

was already conducted shall be regulated by the laws

applicable at that point in time. In fact this has also been

made clear by the Hon'ble Supreme Court that the judgment

would be made applicable only prospectively and not

retrospectively.

7. On the other hand, learned Government Pleader

argued that the petitioners are not taken up or selection in

DSC 2018 for School Assistant and Language Pandit

(Telugu) in East Godavari District under GPA and Tribal

Scheduled as per the orders of the Hon'ble Supreme Court

and consequential direction of the Government. He further

argued that in the notification itself, the respondents

specifically notified, that the rules and guidelines, issued

from time to time, applicable to the notified posts and as

seen from the judgment of Hon'ble Supreme Court, directed

to not to fill up any vacancy in future in contravention of the

Verdict. Now the petitioners plead that the respondents

shall ignore the verdict and appoint the petitioners by

deviating the dictum of Hon'ble Supreme Court, which

amounts to contempt of Supreme Court orders. As such the

plea of the petitioners is untenable under law and the same

is liable for dismissal.

8. On hearing, this Court observed that subsequent

to the judgment of the Hon'ble Supreme Court, the

Government of A.P. and also the Government of Telangana

have made appointments unconditionally to posts which

were notified before the judgment of Hon'ble Supreme Court.

It is also observed that the posts which reserved by 100% as

per G.O.Ms.No.3 of 2000 were also cleared by the

Government of A.P. and also the Government of Telangana

subsequent to the judgment of the Hon'ble Supreme Court.

Therefore it is clear that the Government of A.P. is not

taking into consideration the judgment of Supreme Court

while filling up of posts notified under DSC 2018. This

Court further observed that similarly situated persons have

filed W.P.No.6745 of 2020 before the High Court for the

State of Telangana, wherein the High Court while granting

interim orders directed the respondents to fill up the posts

in terms of Notification dated 21.10.2017. However, it is

made clear that any appointments made will be subject to

the result of the writ petition.

9. In a case of Chebrolu Leela Prasad Rao and

others Versus State of A.P. and others1, wherein it was

held that "once the reservation has been provided to

2020 SCC OnLine SC 383

Scheduled Tribes under Article 16(4), no such power can be

exercised under Article 16(1). The notification is violative of

Articles 14 and 16(4) of the Constitution of India". Further, it

was held that "fact that a similar G.O. was issued by the

erstwhile State Government of Andhra Pradesh in the year

1986, which was quashed by the State Administrative

Tribunal, against which an appeal was preferred in this

Court, which was dismissed as withdrawn in the year 1998.

After withdrawal of the appeal from this Court, it was

expected of the erstwhile State of Andhra Pradesh not to

resort to such illegality of providing 100% reservation once

again. But instead, it issued G.O. Ms. No.3 of 2000, which

was equally impermissible, even if the A.P. Regulation of

Reservation and Appointment to Public Services Act, 1997

would have been amended, in that event also providing

reservation beyond 50% was not permissible. It is rightly

apprehended by appellants that the State may again by way

of misadventure, resort to similar illegal exercise as was done

earlier. It was least expected from the functionary like

Government to act in aforesaid manner as they were bound

by the dictum laid down by this Court in Indra Sawhney

(supra) and other decisions holding that the limit of

reservation not to exceed 50%. There was no rhyme or reason

with the State Government to resort to 100% reservation. It is

unfortunate that illegal exercise done in 1986 was sought to

be protected by yet another unconstitutional attempt by

issuing G.O.Ms. No.3 of 2000 with retrospective effect of

1986, and now after that 20 years have passed. In the

peculiar circumstance, we save the appointments

conditionally that the reorganised States i.e. the States of

Andhra Pradesh and Telangana not to attempt a similar

exercise in the future. If they do so and exceed the limit of

reservation, there shall not be any saving of the appointments

made, w.e.f. 1986 till date. We direct the respondents States

not to exceed the limits of reservation in future."

10. Having regard to the facts and circumstances of

the case and in view of the submission made by both the

learned counsels and upon perusing the entire material

available on record, this Court is of the considered opinion

that, declaring the action of the respondents in not filling up

39 notified/vacant posts in DSC 2018 for the subject posts

in East Godavari District under GPA and Tribunal Schedule

category, as illegal.

11. Accordingly, the Writ Petition is allowed. The

respondents are directed to fill 39 notified/vacant posts in

DSC 2018 for the subject posts in the East Godavari

District, within a period of eight (08) weeks from the date of

receipt of a copy of this order. There shall be no order as to

costs.

As a sequel, all the pending miscellaneous

applications shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date :     -09-2022
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      HON'BLE DR. JUSTICE K. MANMADHA RAO




          WRIT PETITION No.4791 of 2022




                 Date :   .09.2022




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