Andhra Pradesh High Court - Amravati
M Bharat Kumar Reddy vs The State Of Andhra Pradesh, on 9 August, 2024
1
APHC010244312020
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY ,THE NINTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 16062 OF 2020
Between:
M Bharat Kumar Reddy ...PETITIONER
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. V MALLIK
Counsel for the Respondent(S):
1. C SINDHU KUMARI
2. RAVI KIRAN KUMAR KOLUSU (SC FOR SAAP)
3. V VINOD K REDDY
4. GP FOR SERVICES I
5. V.VENKATA NAGA RAJU (SC FOR APPSC)
The Court made the following:
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of India,
seeking the following relief:
".....to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus
to declare the appointment of the respondent No.4 as Assistant Executive Engineer in Zone
Zone-IV
as being illegal, arbitrary and violative of rights guaranteed under Article 14, 16 and 21 of the
Constitution of India by declaring that the writ petitioner is entitled to be selected and appointed
as Assistant Executive Engineer (Civil) in Zone-IV against Post Code No.4 in pursuant to the
rd
recruitment Notification No. 9/2018, dated 29.11.2018 issued by the 3 respondent herein by
further declaring that Form-I to III enclosed to G.O.Ms.No.74, dated 09.08.2012 issued by the
st
1 respondent where under '2%' sports reservation has been provided for meritorious sports
person in all posts and the impugned action is contrary to the G.O.Ms.No.74, dated 09.08.2012
and further contrary to Rule-2(19) of A.P.State and Subordinate Service Rules, 1996 and issue
consequential directions and pass such other orders...."
2. The precise case of the petitioner is that he was qualified in the
computer based examination for the post of Assistant Executive Engineer
under notification No.9/2018, dated 29.11.2018 issued by the 3rd respondent
and he presented all documents including his sports credentials before the 3rd
respondent and also the petitioner was identified under Sports Quota as per
note in web. As there was no objection to the tentative placement, the said list
has been finalized. It is not known whether any clarification is sought from 1st
respondent and the petitioner was kept under dark with regard to his
candidature though he was qualified under 2% sports quota. By virtue of non-
implementation of 2% sports reservation, though the petitioner is entitled too
and in the pretext of Forms 1 to III, 3rd respondent has erroneously refused to
implement the sports reservation of 2% this Writ Petition came to be filed to
direct the 3rd respondent to reserve one vacancy of Assistant Executive
Engineer (Civil) against post code No.4 in Zone-IV in respect of recruitment
notification dated 29.11.2018 issued by the 3rd respondent and further declare
the appointment of the 4th respondent as illegal and arbitrary and contrary to
the G.O.Ms.No.74, dated 09.08.2012 and also contrary to Rule-2(19) of
A.P.State and Subordinate Service Rules, 1996. Hence, requested to allow
the writ petition as prayed for.
3. Heard Mr. V. Mallik, learned counsel for the petitioner; Mr.K. Ravi
Kiran Kumar, learned Standing Counsel for the 2nd respondent/ SAAP; Mr.
S.S.Prasad, learned Senior Counsel, representing Ms. C. Sindhu Kumari,
learned counsel for the 3rd respondent and Mr. G.R.Sudhakar, learned
counsel, representing Mr. V.Vinod K. Reddy, learned counsel for the 4th
respondent.
4. During hearing learned counsel for the petitioner reiterated the
contents urged in the writ petition and mainly contended that as per Form-I, II
and III annexed to G.O.Ms.No.74, dated 09.08.2012 are inconsistent to Rule
2(19) of A.P.State and Subordinate Service Rules (in short 'the Rules') and
G.O.Ms.No.74, dated 09.08.2012 itself. Rule 2(19) of the Rules is reproduced
hereunder:
"(19) Meritorious Sportsman:- "Meritorious Sportsman" means a sportsman
who has represented the State and or the Country in a national or international
competition or Universities in the Inter-University tournaments conducted by the Inter-
University Boards or the State School in the national sports/ games for schools
conducted by the All India School Games, Federation in any of the games, sports,
mentioned below and any other games/ sports as may be a specified by the
Government from time to time".
5. Wherein, it is mentioned Atheletics, Badminton, Basketball and Teak
Wondo (aa) Carroms etc., The definition of meritorious sports person
includes participants not only international and national events and also inter
universities and G.O.Ms.No.74 dated 09.08.2012 goes a step further and
says 2% sports reservation for meritorious sports person in all government
posts and hence the Form-I to III are inconsistent with Rule 2(19) of the
Rules and G.O.Ms.No.74, dated 09.08.2012. In view of the said orders, the
respondent authority are entitled to implement the priorities stipulated therein
and under the guise of Forms-I to III, the respondent authorities cannot act
contrary to the said rules. The petitioner eligible for 2% sports reservation
and hence this writ petition is liable to be allowed.
6. Per contra, the 2nd respondent filed counter-affidavit and mainly
contended that the 3rd respondent has forwarded the documents submitted
by the petitioner to the 2nd respondent dated 21.01.2020 for assignment of
priorities as per rule in vogue. The petitioner has submitted South Zone Inter
University participation Certificate at SRM University, Chennai from 29th
December-2015 to 3rd January, 2016 in Basketball discipline. As per
G.O.Ms.No.74 he was assigned 51 tentative priority and the same is sent to
the 3rd respondent on 05.02.2020 for publication, inviting objections on the
tentative priority list by placing website. Accordingly, final priority list was
prepared by SAAP, got approved by Government Level Committee and the
same was forwarded to the 3rd respondent for further action and ended its
role. Once final priority list submitted to the 3rd respondent for further action,
SAAP has no role to select the candidate for recruitment against notification,
it is the duty of the 3rd respondent to act on, on receipt of final priority list duly
approved by Government Level Committee. The petitioner has not made any
allegations against the respondents 1 and 2 and the matter purely relates to
the 3rd respondent only. Hence, requested to dismiss the writ petition.
7. Per contra, 3rd respondent filed counter-affidavit denying all material
averments made in the writ affidavit and mainly contended that as per
Notification dated 29.11.2018 to fill up 309 vacancies through direct
recruitment for the post of Assistant Executive Engineers in various
Engineering Services, among them, one vacancy (Roster Point: 98) was
reserved for meritorious Sports Persons in Zone-IV (Civil) (Post Code No.04)
in A.P.Water Respurce Department as per G.O.Ms.No.74, Youth
Advancement, Tourism and Culture (Sports) Department, dated 09.08.2012
in pursuance of Commission's Notification No. 9/2018, dated 29.11.2018 for
direct recruitment to the post of Assistant Executive Engineers in various
engineering services. The petitioner along with another candidate who
qualified in the AEEs Main examination was provisionally called for
verification of original under Sports Quota in 1:2 ratio. The petitioner
represented the University of Vikrama Simhapuri University, Nellore in the
Game of Basketball Men Team Event in South Zonal Inter-University
competition held at SRM University, Chennai for the year 2015-16. IT is
further contended that the petitioner has submitted Form-III which is eligible
for employment to Group-IV posts/ Service under the Statement Government/
similar posts in Government Institutions, whereas the post of Assistant
Executive Engineer is in Gazetted level category having pay scale at Rs.
37100-91450/-. Hence, the candidature of the petitioner was not considered
under meritorious sports person quota for the selection process to the post of
Assistant Executive Engineer. The vacancy reserved for meritorious sports
person (Roster Point 98) in Water Resource Department under Zone-IV was
filled by open competition due to non availability of eligible sports persons as
per G.O.Ms.No.17, dated 09.08.2017 and also as per G.O.Ms.No.13, dated
23.01.2018 stated that "(iii) in the event of non-availability of eligible sports
person, the points reserved for them should be deemed to be allotted to
Open Competition in the same recruitment. Based on the Unit List issued by
the Commission the Government has also given appointments to the
selected candidates and they were doing their jobs. Therefore, at this
juncture, question of considering the case of the petitioner in the meritorious
sports person quota does not arise. Hence, the present writ petition is liable
to be dismissed.
8. The 4th respondent filed counter affidavit, denying all material
averments made in the writ affidavit and mainly contended that on perusal of
the General Ranking List, it is clear that the 4th respondent was secured Rank
No.88 and belongs to Open Category. Further, under open category there
are four persons were also selected, who secured ranks 97, 98, 107 and 108
respectively under the General Ranking List. The four persons were
appointed as Assistant Executive Engineers in Panchayat Raj Department in
view of their preferences. The 4th respondent selected for the post of
Assistant Executive Engineer by order dated 20.08.2020 and as per
modification order dated 09.09.2020 the petitioner joined in the office of
Superintending Engineer, TGP & GNSS Circle, Tirupati. The respondent was
appointed as Assistant Executive Engineer in Water Resources Department
under Zone-IV Open Category in view of the fact non availability of eligible
sports person. If the sports person is available, in view of the preferences
given by the 4th respondent, he would have been given posting in Panchayat
Raj Department in view of his eligibility and selection. Form-III submitted by
the petitioner is only meant for employment to Group-IV posts. Taking into
consideration of all these aspects, the petitioner was not selected. If the
petitioner is entitled to be selected for the post of Assistant Executive
Engineer, the appointment of the 4th respondent will not be illegal in view of
the fact that he was given under Zone-IV under Open Category in view of his
preferences. As long as the 4th respondent is in the zone of consideration, the
amended prayer sought for in the writ petition is liable to be rejected.
9. Both the counsel have painstakingly taken this Court through
records of the case and presented their respective points of view very ably.
10. Learned counsel for the petitioner relied on decisions of this Court
in W.P.No.13979 of 2020, dated 24.01.2022, wherein learned Single Judge
of this Court held as follows:-
16. A reading of Annexure-I of G.O.Ms.No.74, dated 09.08.2012 would go to
show that 'Archery' is a recognized sport for 2% Reservation and Annexure-II
dealing with priorities prescribes participation in the All India Inter University
Tournament. In the counter-affidavit of respondent No.4, petitioner's
participation in All India Inter University Archery Competitions was admitted.
Under the said circumstances, placing the petitioner in 'not eligible list' on the
premise that as per G.O.Ms.No.74 dated 09.08.2012, All India/ South Zone
Inter Universities Certificates are not eligible for Group-II Post is not
sustainable. Therefore, the contentions advanced on behalf of learned
Standing Counsel are rejected".
11. It is the contention of the learned counsel for the petitioner that the
petitioner has participated in Inter University basketball tournament. As per
G.O.Ms.No.13, dated 23.01.2018, which is an amendment of statutory
reservation provides for 2% horizontal reservation and roster points 48 and
98 are the relevant roster points and the present recruitment is concerned
with roster point 98 against which the petitioner is claiming. The case of the
petitioner in W.P.No.13979 of 2020, dated 24.01.2022 pertains to group-II
service, whereas the judgment in W.P.No.11057 pertains to Group-I service.
It is well settled proposition that when there is conflict between statutory rules
and executive orders statutory rules will prevail vide Para 10 of the State of
Madya Pradesh v. Yogender Sreevastava"1.
12. It is the contention of the learned counsel for the petitioner that
Rule 2(19) makes no such distinction and under meritorious sportsman
definition from persons, who participated in international events to persons
participated in inter universities are all included and hence the issuance of
Form-III is contrary to the law declared by this Court. In the instant case the
4th respondent was appointed on the assumption that there is non-availability
sports quota candidate and when the assumption does not exist and that the
petitioner is entitled to be selected under sports quota, the action of the 3rd
respondent in giving appointment to the 4th respondent in null and avoid and
(2010) 12 SCC 538
however, the petitioner is to be adjusted in the existing vacancy 17 in Nos. In
Zone-IV and he is to be granted notional service from the date on which the
4th respondent appointment appointed and requested to pass appropriate
orders in the interest of justice. The learned Standing Counsel for the 3rd
respondent vehemently opposed that the order passed in W.P.No.11057 of
2021, dated 29.07.2021 is not covered to the facts of this case.
13. In the light the light of the submissions of both the counsel and also
the decisions of this Court passed earlier cited supra is squarely applicable to
the facts of this case. In the instant case, the petitioner is eligible under 2%
sports reservation has been provided for meritorious sports person.
Therefore the impugned action of the 3rd respondent is contrary to the
G.O.Ms.No.74, dated 09.08.2012 and also contrary to Rule 2(19) of the
Rules. Hence, declaring the appointment of the 4th respondent as Assistant
Executive Engineer in Zone-IV issued by the 3rd respondent as illegal and
arbitrary as it is contrary to the G.O.Ms.No.74, dated 09.08.2012 and Rule-
2(1) of the Rules. However, this Court by its order dated 09.09.2020 it is
categorically noted that any decision with reference to the recruitment for the
post of Assistant Executive Engineer (Civil) in Zone-IV, shall be subject to the
result in this writ petition. Therefore, the result of this Writ Petition shall
binding on the 4th respondent also.
14. Under the aforementioned circumstances, this Writ Petition is
allowed, while declaring the appointment of the 4th respondent as Assistant
Executive Engineer in Zone-IV as illegal and arbitrary and same is hereby set
aside. The official respondents are directed to appoint the petitioner as
Assistant Executive Engineer (Civil) in Zone-IV in pursuant to the recruitment
Notification No.9/2018, dated 29.11.2018 issued by the 3rd respondent under
2% Sports Quota, within three (03) months from the date of receipt of a copy
of this order. There shall be no order as to costs.
The miscellaneous applications pending, if any, shall also stand closed.
______________________________
DR. JUSTICE K. MANMADHA RAO
Date: 09.08.2024
KK
