Telangana High Court

Voleti Mallikarjuna vs The State Of Telangana on 25 April, 2023

Bench: E.V. Venugopal

            HONOURABLE SRI JUSTICE E.V.VENUGOPAL

                WRIT PETITION No.42491 of 2018

ORDER:

1 Heard Ms.K.Kiran Mayee, learned counsel for the petitioner,

the learned Government Pleader for School Education represented

by Ms. Kanyakumari learned Assistant Government Pleader and Sri

MAK Mukheed, learned counsel for the fourth respondent.

2 The second respondent issued notification dated 06.12.2008

for recruitment to the posts of various teachers in Medak District

(73 in total) wherein two posts were reserved for ex-servicemen. The

petitioner applied for the post of Physical Education Teacher. In the

examination conducted for the said purpose, the petitioner got 35th

rank with 45.5 marks. However, as there were some wrong answers

given in the Key in respect of Booklet-D, the petitioner along with

others filed O.A.No.7669 of 2009 before the A.P. Administrative

Tribunal, which was allowed, vide order dated 03.11.2009.

Questioning the same, the respondents filed W.P.No.9633 of 2010,

which was dismissed, vide order dated 10.06.2010. The SLP

preferred by the respondents was also dismissed by the Hon'ble

Apex Court.

3 While the matter stood thus, as there was no ex-service

candidates available to fill up the Physical Education Teachers

posts, the petitioner filed O.A.No.12224 of 2009 before the Tribunal

for conversion of Ex-servicemen quota posts to open category. The

said O.A. was allowed on 22.03.2010 directing the respondents to

consider the case of the petitioner for appointment according to the

merit ranking issued by the DSC for roster points 13 and 37, which

are earmarked for Ex-servicemen. Thereupon, the Government

issued Memo dated 04.06.2010 permitting the Commissioner and

Director of School Education to appoint eligible candidates of DSC

2008 as per merit under O.C (G) category in the resultant vacancies

meant for Ex-servicemen. The petitioner came to know through an

application made under RTI Act from the District Educational

Officer, Medak at Sangareddy that the Ex-Servicemen quota posts

were filled up by (1) Md. Hasham Ali, 37 marks, Rank No.113 and

(2) Akki Swamy, 46.5 marks, Rank No.29.

4 Petitioner further submits that the second respondent issued

proceedings dated 26.03.2014 rejecting his case for appointment to

the post of Physical Education Teacher after revaluation of marks as

per the orders of the Tribunal stating that the last selected

candidate under OC category is one K.Raja Goud who got 49 marks

whereas the petitioner got only 46.50 marks after adding marks as

per the directions of the Tribunal. The petitioner filed an appeal to

the Government on 18.06.2014 stating that two candidates who are

less meritorious than him were appointed in the resultant vacancies

meant for Ex-Servicemen quota which is contrary to the orders

passed by the Government vide Memo dated 04.06.2010.

Thereafter, the petitioner filed W.P.No.38837 of 2018 and during the

pendency of the said writ petition the first respondent issued the

impugned Memo dated 16.11.2018 rejecting his claim for

appointment stating that the petitioner is not coming under

selection zone in OC category and his candidature is not feasible for

consideration for selection as the other candidates have more marks

than the petitioner. Hence the present writ petition.

5 Official respondents filed counter affidavit stating that after

revaluation of the answer sheet the petitioner got 47 marks whereas

the last selected candidate K.Raja Goud got 48 marks. The fourth

respondent Akki Swamy also got 48 marks after revaluation

whereas the petitioner got 47 marks after revaluation. So the

petitioner did not come into the selection zone. It is further

submitted that DSC - 2008 selections and appointments were made

in 2010. As per the Notification which is a statutory one, there is

no waiting list and the selection of candidates should be limited to

the number of vacancies notified. It is not mandatory that the

vacancy earmarked for Ex-servicemen should be filled only with OC

candidate, even the BC/SC/ST candidates who got higher marks

than the O.C candidate can be filled in the PET vacancy earmarked

for Ex-Servicemen when it was filled by O.C candidates. It is not

feasible to consider any of the requests for selection and

appointment of candidates who were not in the merit list of DSC-

2008 at this distance of time since as of today there are no

vacancies available which were notified in DSC-2008, Medak district

selections.

6 Fourth respondent filed counter affidavit stating that

revaluation was taken up by the respondent authorities for three

questions which are challenged before the Tribunal wherein the

petitioner has secured 45.50 marks initially and after revaluation

has secured 46.50 marks. But the last selected candidate in general

category i.e. one K.Raja Goud had initially secured 48 marks and

after revaluation he secured 49 marks. Therefore, the request of the

petitioner was rejected rightly since he has not come within the zone

of consideration after revaluation. Said Raja Goud was not made

party to the writ petition though he was necessary party. But, on an

afterthought the petitioner filed an implead petition I.A.No.1 of 2019

to implead this respondent as R.4. This fourth respondent secured

46.50 marks initially and after revaluation secured 48 marks. This

respondent belongs to B.C (B) category whereas the petitioner

belongs to O.C category. The third respondent issued proceedings

dated 02.11.2010 appointing this respondent as PET and his

services were also regularized on 21.09.2016 This respondent is

meritorious than the writ petitioner. The petitioner approached the

Court after lapse of ten years. Therefore, on the ground of laches

this writ petition is liable to be dismissed.

7 I have given my earnest consideration to the arguments

advanced by the learned counsel on all sides.

8 Before adverting to the contentions of the learned counsel,

this Court deems it appropriate to extract the findings and

directions given by the A.P. Administrative Tribunal in O.A.No.9519

of 2009, which reads as follows:

"Regarding the other questions disputed by the applicants, this Tribunal is not with the applicants for the simple reason that the key supplied by the respondents is correct and do not call for any interference except the three questions referred in supra.

Having regard to the facts and circumstances and also foregoing reasons, the key supplied by the respondents with regard to question Nos.62, 128, 198 in Booklet-D is held as invalid key and the respondents are directed to add ½ mark to each question pertaining to question Nos.62 and 128 to all the candidates who have appeared for the selection to the post of PET in pursuance to the notification issued by DSC-2008 and with regard to question No.198 in Booklet-D the respondents are directed to award ½ mark to such of the candidates who have chosen option as '4' i.e. answer '5' and re-cast the merit list and consider the claim of the applicants if they come within the zone of consideration accordingly to the merit for appointment to the post of PET." (underlined by me)

9 So also, this also deems it appropriate to extract the findings

given by the Division Bench of the erstwhile High Court of Andhra

Pradesh in W.P.Nos.9627 of 2010 dated 20.06.2010, which reads as

follows:

22. The learned Government Pleader for Services-I submit that the list of 9,500 candidates has already been finalized and only the list of 2,600 candidates has to be finalized and if the direction given by the Tribunal is implemented the entire process will become a ponderous box and to re-cast the merit list and add 1/2 mark to each of the candidate will lead to serious repercussion.

23. In view of the above submission, following the judgment of the Supreme Court reported in Kanpur University v. Samir Gupta {(1983) 4 SCC 309} all the Writ Petitions are liable to be dismissed. For ready reference, the relevant portion at paragraph 23 reads as under:

23. We understand that some petitions are pending in the High Court on these very points. Those petitions will be disposed of by the High Court in the light of this judgment, provided that the petitioners therein make out a case for interference as the students in these appeals have done. We, however, direct that no fresh petitions should be entertained by the High Court and, of course, none will be entertained by us hereafter on the questions involved in these appeals arising our of the Test which was held in 1982. The new academic session is due to commence within the next few days

and these questions cannot be allowed to be raised in a leisurely fashion so as to disorganize the scheme of fresh admissions.

24. Accordingly, all the Writ Petitions are dismissed and the order of the Tribunal is only confined to the applicants only and no fresh OA will be entertained. There shall be no order as to costs.

10 There is no dispute with regard to the filing of O.A before the

Tribunal in respect of the wrong answers provided in the Key

pertaining to the Q.Nos.62, 128, 198 in Booklet-D. The direction

given by the Tribunal was to add marks to all the candidates who

have appeared for the selection to the post of PET in pursuance to

the notification issued by DSC-2008. Whereas, when the said order

was challenged before the High Court, the erstwhile High Court of

Andhra Pradesh, on the contention advanced by the learned

Government Pleader for Services that if the direction given by the

Tribunal is implemented the entire process will become a ponderous

box and to re-cast the merit list and add ½ mark to each of the

candidate will lead to serious repercussion, the High Court, placing

reliance on the ratio laid down in Kanpur University v. Samir

Gupta, while dismissing the writ petitions, observed that the order

of the Tribunal is only confined to the applicants only and no fresh

OA will be entertained.

11 Therefore, from the above factual scenario, the Government

might not have revaluated question papers of all the candidates.

The High Court in the above batch of writ petitions restricted to add

marks to the candidates who approached the Tribunal only.

Therefore, as per the observations and directions of the division

bench of this Court, in letter and spirit, adding of marks to all the

candidates who have appeared for the examination does not arise.

Therefore, adding of marks to the fourth respondent who has not

approached the Tribunal and who was not a party to the O.A before

the Administrative Tribunal also does not arise.

12 Further, the contention of the official respondents as well as

the fourth respondent that one K.Raja Goud was not made a party

is also falsified for the reason that the said Raja Goud got more

marks than the petitioner as such the said Raja Goud was

appointed in the first phase of selection i.e. in the month of October

2009 whereas the fourth respondent was appointed on 02.11.2010

after revaluation and after converting the posts meant for ex-

servicemen into open category. The impugned proceedings of the

first respondent dated 16.11.2018 would go to show that the fourth

respondent is the last selected candidate in the OC category,

therefore, the fourth respondent alone is necessary party to the

present writ petition.

13 In the backdrop of the situation, the petitioner, after

revaluation secured 46.5 marks. The fourth respondent also

secured 46.5 marks. The petitioner is elder than the fourth

respondent in age. Therefore, much weightage ought to have been

given to the writ petitioner in giving appointment orders.

14 Further, the contention of all the respondents is that the

petitioner approached this Court after lapse of ten years. But as

seen from the record, the petitioner seems to have been fighting

before different fora for all these years, initially for conversion of the

ex-servicemen quota to open category, later on by filing O.A for the

wrong answers in the booklet and so on and so forth. Not being

contented with the findings of the Tribunal the respondents carried

the matter to this Court and the Hon'ble Apex Court. Thereafter the

petitioner made representations before the second respondent and

when it was dismissed, he filed appeal before the first respondent

which came be dismissed by the impugned order. The petitioner was

made to run from pillar to post for all these years for a justifiable

cause. So while pursuing all these proceedings, much time has

gone.

15 The learned Government Pleader submitted that the DSC-

2008 selections and appointments were made as long back as in

2010. As per the Notification which is a statutory one, there is no

waiting list and the selection of candidates should be limited to the

number of vacancies notified. It is not feasible to consider any of

the requests for selection and appointment of candidates who were

not in the merit list of DSC-2008 at this distance of time since as of

today there are no vacancies available which were notified in DSC-

2008, Medak district selections.

16 However, the fault is on the side of the official respondents

since they have not implemented the directions given in the order

passed in batch of writ petitions by a division of this Hon'ble Court

in letter and spirit. Therefore, having failed to comply with the

directions of the division bench order in true sense, the respondents

now cannot plead innocence and for the mistake committed by the

respondents the writ petitioner, who has good reason to fight the

litigation, cannot be throttled.

17 It is also to be observed further that in the O.A.No.7765 of

2007, the Tribunal gave a direction to convert the posts earmarked

to ex-servicemen at roster points 13 and 37 to O.C (G) quota. There

was no direction to apply reservation to B.C/S.C/S.T. while

converting the posts of ex-servicemen. So also in the Memo dated

04.06.2010 the Government of Andhra Pradesh had also observed

as under:

"In the circumstances stated above, Government after careful examination of the matter, hereby permit the Commissioner and Director of School Education, A.P., Hyderabad to appoint the eligible candidates of DSC-2008 as per merit under OC (G) category in the resultant vacancies meant for Ex-Servicemen which could not be filled up due to non-availability of Ex-Servicemen candidates and it shall be made applicable to the candidates of SC 2008 only."

18 From the above, it is clear that the resultant vacancies of Ex-

Servicemen shall be converted to OC (G) only and shall be treated in

OC (G) category only but reservation policy cannot be applied to

those posts. So in that point of view also the respondents have not

implemented / interpreted the orders of both Tribunal as well as the

Government in converting the posts earmarked to Ex-Servicemen.

They cannot apply reservation policy and state that since the 4th

respondent belongs to B.C category so he was given preference.

19 Therefore and for the foregoing reasons, the writ petition is

allowed, directing the respondents to provide employment to the

writ petitioner as Physical Education Teacher in Medak district or in

any other district wherever there is vacancy treating his seniority