Andhra Pradesh High Court - Amravati
The State Of Andhra Pradesh, vs Sri Dindi Satyanarayana on 29 September, 2022
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE Mr. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
&
HON'BLE Mr. JUSTICE D.V.S.S. SOMAYAJULU
W.A.Nos.486, 490, 549 of 2022 and W.A No.59 of 2021
(Hearing through physical mode)
W.A.No.486 of 2022
The Andhra Pradesh Social Welfare Residential Educational
Institutions Society, rep. by its Secretary, R/o.Tadepalli, Guntur
District
... Appellant
Versus
The State of Andhra Pradesh, rep. by its Principal Secretary, Social
Welfare Department, Secretariat, Velagapudi, Amaravathi Guntur
District, and others
... Respondents
Counsel for the appellant : The Advocate General
Counsel for respondents 2 and 3 : Smt. Kavitha Gottipati
W.A.No.490 of 2022
The Andhra Pradesh Social Welfare Residential Educational
Institutions Society, rep. by its Secretary, R/o.Tadepalli, Guntur
District
... Appellant
Versus
The State of Andhra Pradesh, rep. by its Principal Secretary, Social
Welfare Department, Secretariat, Velagapudi, Amaravathi Guntur
District, and another
... Respondents
Counsel for the appellant : The Advocate General
Counsel for respondent No.2 : Mr.M.Vijaya Kumar
2 HCJ & DVSS, J
W.A.Nos.486, 490, 549
of 2022 and
W.A.No.59 of 2021
W.A.No.549 of 2022
The Andhra Pradesh Social Welfare Residential Educational
Institutions Society, rep. by its Secretary, R/o.Tadepalli, Guntur
District
... Appellant
Versus
The State of Andhra Pradesh, rep. by its Principal Secretary, Social
Welfare Department, Secretariat, Velagapudi, Amaravathi Guntur
District, and others
... Respondents
Counsel for the appellant : The Advocate General
Counsel for respondents 2 to 19 : Smt.Kavitha Gottipati
W.A.No.59 of 2021
The State of Andhra Pradesh, rep. by its Principal Secretary, Home
Department, A.P. Secretariat, Velagapudi, Amaravati, Guntur
District, and others
... Appellants
Versus
Sri Dindi Satyanarayana, S/o. Sri L. Ramana, aged about 37 years,
Occ: Ex-Serviceman, R/o.D.No.9368/1, High School Road
Pentaiahnagar, Gazuwaka, Visakhapatnam District, A.P.
... Respondent
Counsel for the appellants : The Advocate General
Counsel for the respondent : Mr.P.V.Ramana
COMMON JUDGMENT
Dt.29.09.2022
(Prashant Kumar Mishra, CJ)
W.A.Nos.486, 490 and 549 of 2022 arise out of the common
order dated 05.01.2022 passed by the learned single Judge disposing
of W.P.Nos.4884, 7065 and 12290 of 2020. These writ petitions relate
3 HCJ & DVSS, J
W.A.Nos.486, 490, 549
of 2022 and
W.A.No.59 of 2021
to filling up of the posts of Trained Graduate Teacher (TGT), whereas
W.A.No.59 of 2021 arises out of the order dated 25.02.2021 passed by
the learned single Judge in W.P.No.15131 of 2019. This writ petition
relates to filling up the post of Reserve Sub Inspector (AR) in Ex-
serviceman category in the Department of Home.
2. All the writ appeals were heard together as they involve
common question as to whether the vacancies to which the writ
petitioners lay their claim on, are fallout vacancies due to
relinquishment and non-joining, attracting the rigour of
G.O.Ms.No.544, General Administration Department (Services-A)
Department, dated 04.12.1998. For the sake of convenience, this
Court shall first deal with the issue involved in W.A.Nos.486, 490 and
549 of 2022.
3. It is not in dispute that all the writ petitioners (respondents in
the said writ appeals) are qualified to apply for appointment to the
posts of TGTs. in Biological Sciences and other subjects notified in
Zone-II under SC (G) category. It is the case of the writ petitioners
that the candidates placed above them have not appeared in the
counselling; thus, they have not been appointed to the said posts;
therefore, writ petitioners are entitled to be considered without
treating the said vacancies as fallout vacancies.
4 HCJ & DVSS, J
W.A.Nos.486, 490, 549
of 2022 and
W.A.No.59 of 2021
4. On the other hand, Sri S. Sriram, learned Advocate General,
appearing on behalf of the appellants in these writ appeals, would
submit that the candidates who failed to appear in the counselling
have, in fact, not joined and relinquished their posts; therefore, by
virtue of G.O.Ms.No.544, General Administration Department
(Services-A) Department dated 04.12.1998, the vacancies are
required to be notified in the next recruitment and the writ issued by
the learned single Judge is not accordance with law. In the
alternative, it is argued by him that the observation by learned single
Judge in the concluding paragraph of the common order under appeal
that the writ petitioners cases be considered without reference to
the said G.O., ought not to have been made inasmuch as if the said
G.O., applies, there cannot be any order in favour of the writ
petitioners ignoring the said G.O.
5. Admittedly, the candidates who are placed above the writ
petitioners did not appear for counselling and, as such, no
appointment order was ever issued in their favour. Whether in such
situation, the vacancies not offered to such candidates can be
treated as relinquished vacancies, has to be understood by
considering the scope of G.O.Ms.No.544 dated 04.12.1998. The said
G.O. is reproduced hereunder for ready reference:
5 HCJ & DVSS, J
W.A.Nos.486, 490, 549
of 2022 and
W.A.No.59 of 2021
"GOVERNMENT OF ANDHRA PRADESH
ABSTRACT
PUBLIC SERVICES - Recruitment (Direct) - Selection of Candidate against
resultant vacancies of Non-joining, Relinquishment of selected candidates -
Discontinuance of operation of waiting list - Orders - Issued.
_____________________________________________________________
GENERAL ADMINISTRATION (SER-A) DEPARTMENT
G.O.Ms.No.544 Dated: 04.12.1998
Read the following:-
1. Govt. Letter No.37903/Ser.A/98-1, Genl.
Admn. (Ser.A) Dept., dated 11.09.1998
2. From the SEcretary, APPSC., D.O.Lr.No.
2341/RR/2/97, dt.28.9.1998.
ORDER:
The following notification shall be published in the Andhra Pradesh
Gazette:
NOTIFICATION
In exercise of the powers conferred by the proviso to article 309 of
the Constitution of India and all other powers hereunto enabling, the
Governor of Andhra Pradesh hereby makes the following ad-hoc rule,
namely:-
AD-HOC RULE
"Notwithstanding anything contained in the Andhra Pradesh State and
Subordinate Service Rules/Special Rules or adhoc rules governing
maintenance and operation of waiting list for all the Direct Recruitments for
the posts under the State and Subordinate Services and Last Grade Services
that are being taken up by various recruiting agencies and also through
Employment Exchange, the maintenance and operation of waiting list for all
the recruitments shall be dispensed with and the list of candidates
approved/selected in any recruitment by any recruiting agency in the State
in any department for such posts shall be equal to the number of vacancies
notified for that recruitment only including those meant for reserved
community/category notified by the Unit Officers. The fallout vacancies, if
any, due to relinquishment and non-joining etc. of selected candidates shall
be notified in the next recruitment".
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH)
V. ANANDARAU,
CHIEF SECRETARY TO GOVERNMENT."
6 HCJ & DVSS, J
of 2022 and
W.A.No.59 of 2021
6. G.O.Ms.No.544 dated 04.12.1998 dispenses with the
requirement of maintenance and operation of waiting list for all the
recruitments. It further says that the fallout vacancies, if any, due to
relinquishment and non-joining etc. of selected candidates shall be
notified in the next recruitment. To attract application of the
provisions contained in G.O.Ms.No.544 dated 04.12.1998, it is
necessary that the selected candidates have been offered
appointment, which they have relinquished by not joining the post.
The issuance of appointment order is, therefore, sine qua non for
relinquishment of the said offer of appointment. In the case at hand,
there is no appointment order in favour of the candidates placed above
the writ petitioners, who did not participate in the counselling. In the
counselling letter issued to the selected candidates, it is informed that
the candidates should report at the venue without fail and the
candidates who fail to attend the counselling are deemed to be
treated as his/her non-willingness. The counselling letter available as
part of material papers nowhere indicates that the candidate has been
offered appointment. P. Ramanatha Aiyar's Law Lexicon 3rd Edition
defines the word "relinquishment" in the following manner:
"Relinquishment: A forsaking, abandoning, or giving over". Thus,
relinquishment implies rejection of offer. A person who has appeared
in the counselling, therefore, cannot be treated to have relinquished
the post as the same was never offered to him.
7 HCJ & DVSS, J
of 2022 and
W.A.No.59 of 2021
7. A Division Bench of the erstwhile High Court of Andhra
Pradesh, in the matter of Government of A.P. and others v. Ms.
Bhagam Dorasanamma & another [2014 (1) ALD 88] had an occasion
to consider G.O.Ms.No.544 dated 04.12.1998. Dealing with similar
arguments, the Division Bench referred to another Division Bench's
order dated 13.03.2013 of the erstwhile High Court of Andhra Pradesh
in W.P.No.5622 of 2012, wherein the following was held:
"Admittedly, Smt. V. Ramalakshmi was issued
appointment orders for the posts of Forest Thanadar
as well as Assistant Beat Officer. Admittedly, she
joined the post of Assistant Beat Officer. When she has
not joined the post of Forest Thanadar, the question
of relinquishment does not arise. Since she was given
appointment orders for the posts of Assistant Beat
Officer and Forest Thanadar and when she has joined
the post of Assistant Beat Officer, it cannot be treated
as a case of non-joining of a selected candidate. Once
a person is selected for two posts, it is obvious that
she would join only the higher post and it is clear that
the other post would be vacant. In such a situation i.e.
when a candidate is selected for two posts, instead of
issuing appointment order for two posts, the
authorities should issue appointment order for the
higher post, so that, the next meritorious candidate
could be appointed in the next category post. It is to
be seen that the respondent is the next meritorious
candidate in the same selection process for the post of
Forest Thanadar and the petitioners would have
considered her case."
8 HCJ & DVSS, J
of 2022 and
W.A.No.59 of 2021
8. It was further observed by the Division Bench in the matter of
Ms. Bhagam Dorasanamma (supra) at paragraph 19, which reads
thus:
"19. The process of recruitment starts from the date of
notifying the vacancies and attains finality with the act
of issuing appointment order, offering the post to the
selected candidate. In the absence of reaching the said
finality of issuing appointment order in respect of
subject vacancy, the question of either relinquishment
or non-filling of the same does not arise. The
interpretation sought to be given by the authorities for
denying appointment to the applicant/1st respondent
herein is contrary to the very spirit and object of
service jurisprudence and we find total lack of
justification on the part of the petitioner authorities
and such action undoubtedly tantamounts to
transgression of Part-III of the Constitution of India in
the event of testing the same on the touchstone of
Article 16 of the Constitution of India."
9. The law laid down by this Court interpreting the provisions
contained in G.O.Ms.No.544 dated 04.12.1998 still holds the field and
even independently, we have arrived at the conclusion that the said
G.O. would apply only where appointment order has been issued and
the candidate refused to join the post. Thus, we are in agreement
with the order passed by the learned single Judge allowing the writ
petitions. However, considering the submission made by the learned
Advocate General appearing for the appellants we substitute the
9 HCJ & DVSS, J
of 2022 and
W.A.No.59 of 2021
operative portion of the order passed by the learned single Judge in
the writ petitions, in the following manner:
"... the 2nd respondent is directed to consider the cases of
the petitioners for issuance of appointment orders for the
posts of T.G.Ts. if they are found to be next meritorious
candidates in their respective categories by placing them
in the provisional selection list and call them counseling
and compliance of other formalities and issue of the offer
of "appointment orders" for the said posts if they become
approved/selected candidates in the "vacancies
available" due to non-attendance of the meritorious
candidates above the petitioners in the counselling".
10. In view of the above substitution of the operative portion, the
last four lines in paragraph 10 of the common order dated 05.01.2022
passed by the learned single Judge in W.P.Nos.4884, 7065 and 12290
of 2020, stand set aside.
11. Insofar as W.A.No.59 of 2021 is concerned, the said appeal has
been filed challenging the order dated 25.02.2020 passed by the
learned single Judge in W.P.No.15131 of 2019. The writ petitioner
claimed appointment to the post of RSI (AR) under ex-servicemen
category for Zone-I in the Home Department, Government of Andhra
Pradesh. Another candidate was selected for the subject vacancy.
However, the said candidate, having been selected for one more post,
10 HCJ & DVSS, J
of 2022 and
W.A.No.59 of 2021
to which he eventually joined, never came forward to lay his claim on
the subject post; thus, rendering the same available to be offered to
another candidate. However, the writ petitioner was denied
appointment treating the vacancy as fallout vacancy.
12. The learned single Judge allowed the writ petition holding that
the vacancy which arose due to the first person joining some other
post, cannot be treated as fallout vacancy and the writ petitioner
would become entitled for consideration to the vacancy.
13. The present is again a case where the other candidate was not
offered any appointment for the said post as he had already joined in
some other post. The learned single Judge, therefore, rightly
concluded that G.O.Ms.No.544 dated 04.12.1998 has no application,
as the same applies to fallout vacancies which arose due to
relinquishment and non-joining, which is not the case here. The
present writ appeal also involves the issue which has been already
dealt with while deciding W.A.Nos.486, 490 and 549 of 2022 as above.
However, the learned single Judge directed the respondents to issue
appointment letter to the writ petitioner, which, in our opinion, may
not be appropriate for the reason that the learned single Judge had no
occasion to examine as to whether the writ petitioner is the next
meritorious candidate or not. In the circumstances, we substitute the
operative portion of the order dated 25.02.2020 passed by the learned
single Judge in W.P.No.15131 of 2019, by directing the appellants
11 HCJ & DVSS, J
of 2022 and
W.A.No.59 of 2021
(respondents in the writ petition) herein to consider the case of the
writ petitioner for issuance of appointment order for the post of RSI
(AR) in ex-servicemen category in Zone-I, if he is found to be next
meritorious candidate in the category, by placing him in the
provisional selection list and call him for counseling and compliance of
other formalities, if he becomes approved/selected candidate in the
vacancies available due to non-attendance of the meritorious
candidates above him in the counseling.
14. All the writ appeals are disposed of in the terms indicated
hereinabove. No order as to costs. Pending miscellaneous
applications, if any, shall stand closed.
Sd/- Sd/-
PRASHANT KUMAR MISHRA, CJ D.V.S.S. SOMAYAJULU, J
MRR
