Telangana High Court
A.N. Sri Harish vs Osmania University And Anther on 19 November, 2022
Bench: Namavarapu Rajeshwar Rao
1 RRN,J
W.P.No.28443 of 2019
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
+ WRIT PETITION No.28443 of 2019
Between:
A.N. Sri Harish
...Petitioner
vs.
Osmania University & another
... Respondents
JUDGMENT PRONOUNCED ON: 19.11.2022
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
___________________________________
NAMAVARAPU RAJESHWAR RAO, J
2 RRN,J
W.P.No.28443 of 2019
* THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+ WRIT PETITION No.28443 of 2019
% 19--11--2022
# A.N. Sri Harish
...Petitioner
vs.
$ Osmania University & another
... Respondents
!Counsel for the Petitioner : Sri Srikanth Hariharan
^Counsel for Respondent No.1: Sri CH. Jagannath Rao
<Gist :
>Head Note :
? Cases referred
1 1998(5) ALD 590
3 RRN,J
W.P.No.28443 of 2019
HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION NO.28443 of 2019
ORDER:
This Writ Petition is filed seeking to issue a Writ, order or
direction more in the nature of Writ of Mandamus declaring the
inaction of the respondent University in not appointing the
petitioner to the post of Superintendent against roster point 99-
BC-B(W) category despite non-availability of women candidates
against the said post and eligibility of the petitioner, as arbitrary
and contrary to Rule 22(g) of G.O.Ms.No.65, General
Administration Department (Ser.D) dt.15.02.1997 and
consequently, direct the 1st respondent University to appoint the
petitioner to the post of Superintendent against roster point 99-
BC-B(W).
2. Heard Sri Srikanth Hariharan, learned counsel for the
petitioner and Sri CH. Jagannath Rao, learned Standing counsel
for the 1st respondent. Perused the record.
4 RRN,J
W.P.No.28443 of 2019
3. This Court while admitting the Writ Petition, passed an
interim order on 22.04.2021 stating that any promotion made will
be subject to the result of the Writ Petition.
4. The contention of the petitioner is that, he was appointed as
a Typist-III-cum-Care Taker in the respondent University on
30.08.2006. Subsequently, he was promoted as a Senior
Assistant on 31.03.2017. He submitted that he belongs to BC-B
category. Petitioner further submits that the respondent
University issued notification vide No.MR-58/5/82.Estt.1 dt.
24.4.2019 for filling up of five vacant posts in Superintendent
category. For this post, all Senior Assistants who have put in two
years as Senior Assistant and five years of total regular service,
were eligible to participate in the recruitment process. He also
applied for the said post and he secured 106.5 marks and was
placed in 12th position in the qualified list. As there were
candidates for the notified backlog posts and existing backlog
posts, the same have been filled by the University by order
03.12.2019 vide MR No.165/5/82/Estt.I and while doing so, the
5 RRN,J
W.P.No.28443 of 2019
respondent University did not fill up the roster point 81 which
belongs to B.C.(B) (W) on the ground that there were no eligible
women candidates who were available and the same was carried
forward. As such, the respondent University did not choose to fill
up the post with male candidates like petitioner. Hence, the
present Writ Petition.
5. Learned Counsel for the petitioner submits that respondent
University adopted G.O.(P) No.65 General Administration (Ser.D)
Department dt.15.02.1997 in respect of teaching and non-
teaching appointments in the University by virtue of Orders dt.
26.02.2000 vide No.MR-96/25/88/SC-ST/ADMN.II-1 and the
said University adopted a roster system of appointment in the
Unit of 100 vacancies. As per rule 22(g) of the above said G.O., it
is provided that in any recruitment, qualified candidate belonging
to the reserved category and women are not available for
appointment to the vacancies reserved for them a limited
recruitment confined to the candidates belonging to them shall be
conducted immediately after the general recruitment.
6 RRN,J
W.P.No.28443 of 2019
5.1. Learned counsel for the petitioner further submits that the
respondent University across cadres of appointment that a post
which is reserved for women category cannot be filled up owing to
non-availability of women candidates, the post in the
corresponding roster point are filled up with persons who are
male and have the requisite qualification and belong to the same
category of reservation.
5.2 Learned counsel for the petitioner also brought to the notice
of this Court that the respondent University in an earlier
occasion, vide orders No.MR-201/5/82/ESTT-I, dt.29.08.2011,
filled up the roster point 45-B.C. (A) (W) for appointment to the
post of Superintendent with a male candidate by name Srinivas
Rao, who was working as a Senior Assistant. He also submits
that in the earlier notification No.MR-17/83/87/ESTT.I
dt.11.10.2012, it was clearly mentioned that if women candidates
were not available in the roster then the same will be filled with
suitable male candidates of the same category. If the respondent
University adopts to continue its policy of appointing male
7 RRN,J
W.P.No.28443 of 2019
candidates against the posts reserved for women category, as per
its usual practice, petitioner would have been entitled to be
appointed as against running roster point 99 BC-B(W) category.
If the petitioner is not appointed as per the said roster point, his
promotion prospects would be jeopardized and thereby utilizing
his career by 4 to 5 years.
5.3. Learned counsel for the petitioner also further submits that
the petitioner made a representation to the respondent University
on 22.11.2019 but till date the respondent University has not
acted upon the said representation. Subsequently, the petitioner
filed an RTI application dt.6.12.2019 with the respondent
University seeking to provide the table of empanelment for
appointment against the corresponding roster, for this also the
respondent University has not responded.
5.4. Learned counsel for the petitioner further submits that as
per orders dt.03.12.2019, the respondent University has already
filled up till roster point 93 and the backlog roster is already filled
by the respondent University, therefore, the current running
8 RRN,J
W.P.No.28443 of 2019
roster point 96. He further submits that as per the qualified list
90-OC-W cannot be filled up due to unavailability of women
candidates, and he was informed that five vacant posts in
Superintendent Category would arise in future within the period
of two years. Therefore, he became eligible for appointment to the
said post at 99-point roster BC-B(W). The action of the
respondent University is discriminatory and it violates Article 14
of Constitution of India.
5.5. Learned counsel for the petitioner further submits that the
reservation for women is a horizontal reservation under Article
15(3) of the Constitution of India, and it is settled proposition of
law that the horizontal reservation cannot be carried forward, and
the intent and purport of Rule 22(g) is to ensure that if the
reserved category women candidates are unavailable, an
opportunity is to be given to qualified male candidates of the same
category. He further submits that Rule 22(g) of G.O.(P) No.65
clearly states that if there are no women candidates available for
the reserved category, then a limited recruitment shall be held for
9 RRN,J
W.P.No.28443 of 2019
the candidates belonging to the category to fill such vacancies
reserved for such candidates. The respondent University is not
implementing the said rule in its true spirit.
5.6. Learned counsel for the petitioner further submits that the
respondent University has postponed the appointment to roster
point 81-BC-B(W) category, his consequential entitlement to the
post of Superintendent in the roster point 99-BC-B(W) is also
prejudiced. Accordingly, prayed to allow the Writ Petition.
6. The respondent University filed counter denying all the
allegations made by the petitioner. In the counter, it admitted
that the University is following the G.O.(P) No.65 dt.15.02.1997
and in terms of the said G.O., the post reserved for women
candidates cannot be filled up with male candidates. Therefore,
the roster point reserved for BC-B(W) has been carried forward as
no woman candidate belonging to BC-B category qualified in the
written test. The principle of carry forward of vacancies in respect
of women shall be with effect from 28.10.1996. The principle of
roster points for women candidates shall be with effect from
10 RRN,J
W.P.No.28443 of 2019
01.08.1996. It is further contended that the action taken by the
University in not filling up the BC-B(W) post reserved for women
with male candidate is in accordance with the G.O.(P) No.65
General Administration (Service-D) Department dt.15.12.1997
and is in the spirit of reservation provided for women by the
Government and is no way arbitrary and prayed to dismiss the
Writ Petition.
7. Learned counsel for the petitioner relied upon the judgment
in Md.Iqbal Ahmed And Ors. vs High Court Of Andhra Pradesh1 wherein this
Court at para No.21 held as under:
"We therefore, strike down the action of the respondents in
carrying forward the vacancies reserved for, but unfilled by
women candidates and direct that those vacancies should
be thrown open to the men candidates in the order of merit
and subject to the observance of roster points and the rules
of reservation applicable to SCs, STs and BCs. In effect, the
original list sent up by the High Court will get revived
substantially. The cases of the petitioners for inclusion in
the approved, list shall be considered against the resultant
1998(5) ALD 590
11 RRN,J
W.P.No.28443 of 2019
vacancies. The writ petitions are accordingly, allowed. No
costs."
8. In view of the rival contentions made by both parties, this
Court is of the considered view that in an earlier occasion the
University itself issued notification dt.11.10.2012 stating that in
case women candidates are not available in the above roster, the
same will be filled up with male candidates in the same category.
The same was deleted in the present notification dt.24.04.2019, is
not acceptable. In earlier occasions also in the year 2012 and
2018 in similar circumstances the University appointed male
candidates when eligible women candidates were not available in
the same category. This type of discrimination cannot be
accepted. Moreover, the orders dated 03.12.2019, while filling up
the vacancies with regard to notification dated 24.04.2019, the 1st
respondent University specifically stated that the roster point 81
BC-B (W) and 90-BC-OC (W) are carried forward. It is against the
settled law in terms of Article 15(3) of Constitution of India where
horizontal reservations cannot be carried forward.
12 RRN,J
W.P.No.28443 of 2019
9. The judgment relied upon by the learned counsel for the
petitioner is valid as the carrying forward of vacancies is
erroneous. While issuing the notification for filling up the
vacancies, the authorities cannot deviate the earlier notification
and it is against the settled law.
10. The G.O.(P) No.65 dt.15.02.1997, which is adopted by the
University in the point No. (g) & (h) is as follows:
"(g) If in any recruitment, qualified candidates
belonging to the Scheduled Castes, Scheduled Tribes,
Backward Classes (Group-A), (Group-B), (Group-C)
and as the case may be (Group-D) and women are
not available for appointment to any or all the
vacancies reserved for them, a limited recruitment
confined to candidates belonging to them shall be
made immediately after the general recruitment to
select and appoint qualified candidates from among
the persons belonging to these communities to fill
such reserved vacancies."
"(h) (i) If in any recruitment, qualified candidates
belonging to the Scheduled Castes, Scheduled Tribes,
Backward Classes (Group-A), (Group-B), (Group-C)
13 RRN,J
W.P.No.28443 of 2019
and as the case may be (Group-D) or women are not
available for appointment to all or any of the
vacancies reserved for them even after conducting a
limited recruitment as specified in sub-rules (g), such
vacancies or vacancy may be allotted to the Open
Competition after obtaining the permission of the
Government and may, thereafter, be filled by a
candidate or candidates selected on the basis of
Open Competition."
11. In view of above facts and circumstances and also in view of
the settled principle of law, this Court is of the considered view
that this Writ Petition can be disposed with a direction to the
respondent University to consider the case of the petitioner in
accordance with law.
12. Accordingly, the Writ Petition is disposed of by directing the
respondent University to consider the case of the petitioner and
pass an appropriate order in accordance with Law within a period
of three months from the date of receipt of copy of this Order. No
costs.
14 RRN,J
W.P.No.28443 of 2019
As a sequel thereto, miscellaneous applications, if any,
pending in this writ petition, shall stand dismissed.
_____________________________________
NAMAVARAPU RAJESHWAR RAO,J
Date: 19.11.2022
BDR
