Telangana High Court

Mutyala Gautam vs State Of Telangana on 19 January, 2023

Bench: Surepalli Nanda

 IN THE HIGH COURT OF TELANGANA AT HYDERABAD

                 W.P. No.16005 OF 2019
Between:


Mutyala Gautam
                                               ... Petitioner
                           And

State of Telangana and others
                                           ... Respondents

       JUDGMENT PRONOUNCED ON: 19.01.2023

    THE HON'BLE MRS JUSTICE SUREPALLI NANDA



1. Whether Reporters of Local newspapers    :    yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be
   marked to Law Reporters/Journals?       :     yes

3. Whether Their Lordships wish to
   see the fair copy of the Judgment?      :     yes



                                    _________________
                                    SUREPALLI NANDA, J
                                                           WP_16005_2019
                                2                                  SN,J




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                  W.P. No.16005 OF 2019
% 19.01.2023

Between:


# Mutyala Gautam
                                                 ... Petitioner
      and
$ State of Telangana and others

                                             .....Respondents


< Gist:
> Head Note:



! Counsel for the Petitioner   : Sri L. Prabhakar Reddy
^Counsel for Respondents 4 to 9: Sri S.Lakshmikanth
^Counsel for respondent No.2 : Sri M.V.Rama Rao
                                 Standing counsel
^ Counsel for respondent No.1 : G.P. for Home


? Cases Referred:
   1. (2009) 5 SCC 511
   2. (2013) 11 SCC 309
                                                            WP_16005_2019
                               3                                    SN,J




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                 W.P. No. 16005 of 2019
ORDER:

Heard learned counsel for the petitioner learned

standing counsel for the 2nd respondent and learned

counsel appearing for respondents 4 to 9.

2. This writ petition is filed to issue an writ, order or

direction more particularly one in the nature of Writ of

Mandamus to direct the respondent authorities to consider the

claim of the petitioner for appointment to the post Code

Nos.11 to 19 under Ex-Servicemen Quota as per the

notification Rc.No.89/Rect./Admn.-1/2018 dated 31.05.2018

issued by the 2nd respondent herein, by declaring the action

of the respondent authorities with regard to the manner of

conducting tests and reducing the vacancies after conducting

examination, as illegal, arbitrary, and in violation of Art.14

and 16 of Constitution of India and contrary to the provisions

of Telangana State & Subordinate Service Rules, 1996

consequently set aside the improper selection of the

respondent nos. 4 to 9 under ex-servicemen quota.

                                                                       WP_16005_2019
                                   4                                           SN,J




3)     The case of the petitioner, in brief, is as follows:


a)     The Petitioner is a Ex-servicemen and is challenging the

manner     and   method    of    selection        process    by    the     2nd

respondent       for   selection       of        posts     notified      vide

Rc.No.89/Rect./Admn.1/2018 dated 31.05.2018 under ex-

servicemen quota.

b) The Petitioner is a local candidate of Zone - V

comprising Adilabad, Karimnagar, Warangal, and Khammam

districts and had worked in the past in:

1. On 08.08.1996 - Joined in Indian Air Force as Aircraftsmen.

2. On 1997 - Posted to Bikaner in Rajasthan and worked up to 2001.

3. On 1999 - Took part in Kargil war and also received appreciation letter by Station Commander in 2004.

c) The petitioner also received letter of appreciation from

Air Officer Commanding in the year 2005 and 2007 for

discharging his duties sincerely, efficiently and professionally

and after working for 20 years, he has retired as Sergeant in

the year 31.08.2016.

                                                                WP_16005_2019
                                  5                                     SN,J




d)    The 2nd Respondent has issued recruitment notification

through online vide proceedings no. 89/Rect/Admn.-1/2018

dated 31.05.2018 for filling up of various posts:

a. Sub-Inspector of Police - 710.

b. Reserve Sub-Inspector of Police - 275 c. Reserve Sub-Inspector of Police, TSSP - 275 and d. Other posts - in all 1217, code 11 to 19, through direct recruitment in Zone - V, VI and city of Hyderabad.

e) The petitioner has applied having the eligibility through

online for the supra mentioned posts and was assigned with

registration no. 11209851. The process of selection

consists of 5 stages i.e., Preliminary Written Test,

Physical Measurement Test, Physical Efficiency Test,

Final Written Examination followed by Final Selection.

The Selection for posts of Code No. 11 - (Sub-Inspector

of Police, selection will be made based upon merit

scores in the final written examination subject to

reservation. The Selection for posts of Code No. 12 -

(Reserve Sub-Inspector of Police), the selection will be

made both on merit scored in the final written

examination and also upon the Physical Efficiency Test WP_16005_2019 6 SN,J

subject to reservations and the process for other code

is different.

f) The Post Code - (Reserve Sub-Inspector of Police) of

Zone V was shown as 166 and Zone VI as 109. However,

after the completion of all the tests, the 2nd Respondent has

brought an amendment to the supra "Notification in Rc No.

89/Rect./Admn-1/2018 dated 31.05.2018" vide

Rc.No.89B/Rect./Admn-1/2018 dated 12.07.2019 reducing

the number of posts from 166 to 109 in Zone - V and adding

the same to Zone VI, assigning no reason whatsoever.

g) The Rule 24 of the notification deals with, who can

claim reservation as ex-servicemen and the conditions to

satisfy to claim such reservation mentioned in Rule 2(16) of

Telangana State Subordinate Service Rules, 1996 and the

explanation of the said rule is given at length. As per Rule

22E(c) of Telangana State Subordinate Service Rules, 1996

out of every 50 posts in the Police Subordinate Service, 2

posts shall be reserved for direct recruitment of ex-

servicemen i.e., the Roster point No. 13 to 37. As per the

original Notification dated 31.05.2018, the number of notified WP_16005_2019 7 SN,J

vacancies for Zone V relating to post Code No. 12 were 166

vacancies, out of which, ex-servicemen will be getting 4

posts.

h) Due to by passing the selection process and due to

improper reduction of number of posts of Reserve Sub-

Inspector of Police Posts (Post code No. 12) in Zone - V from

166 to 109, the number of posts for ex-servicemen fell from 4

to 2 and the petitioner would have been automatically

selected by virtue of his rank if there was no change in

vacancies. Even though, the 2nd respondent reserves his right

to notify the required modification in any aspect of the

recruitment, that does not apply in the present instance

usually, the number of vacancies could be increased before

the commencement of examination, but in this particular

incident, the Final Written Examination was held on

21.04.2019 and the amendment to the notification was

brought on 12.07.2019 which is arbitrary, improper and such

reduction is to be set aside.

i) Under an R.T.I application addressed by Respondent

No. 3 to Respondent No. 2, it has been submitted that, no WP_16005_2019 8 SN,J

verification/cross-verification of certificates of the certificates

is being done by Respondent No.2. Had the reduction in ex-

servicemen not happened due to arbitrary reduction in Posts

of Reserve Sub-Inspector of Police (Post code No. 12), and

verification/cross checking of certificates of Respondents 4 to

9 would have been done, the respondents 4 to 9, would not

have been selected as eligible candidates and by virtue of

next in highest marks, the petitioner would have been

selected under the said posts to Zone-V.

j) Respondent no. 4 was unwilling to continue in service

against shelter appointment under item No. III (V) of Army

Rule 13(3) and is also drawing disability pension from the

Army is not eligible for post Code 11 to 19 and that

respondent No. 4 is ineligible as he already got selected in the

post of Junior Panchayath Secretary and also Group - IV

under direct recruitment, under ex-servicemen quota, as the

same is against the Office Memorandum No. 36034/1/2014-

Estt.Govt. of India dated 14.08.2014.

k) Respondents 4 to 8 are selected and working as Junior

Panchayath Secretary and those who have already availed WP_16005_2019 9 SN,J

once the benefit of ex-servicemen quota, are not eligible for

claiming benefits once again as per Office Memorandum.

Respondent No. 9 having not obtained valid and proper NOC,

one year before the retirement of service as required under

Rule 2(16) of Telangana State Subordinate Service Rules,

1996 and is still continuing as JE is MES and is not retired

from service and hence, he is ineligible to claim the benefits

of Reservations under Ex-servicemen quote for the said posts.

l) An application dated 22.07.2019 under R.T.I. Act has

been made to the 3rd Respondents seeking clarification with

respect to eligibility of ex-servicemen to avail second time

reservation under the rules and instructions, which is still

pending before the concerned authority. The 3rd respondent,

who is having overall responsibility for resettlement of ex-

servicemen personnel including officers and their families,

apart from advising Central Government in matters relating to

assisting the welfare of ex-servicemen.

m) No marks were shown to the petitioner in the individual

Till date, the marks and rank of the petitioner is not uploaded WP_16005_2019 10 SN,J

in the individual login. The petitioner made a representation

on 13.07.2019 for the same. A vague reply was given that

the petitioner secured 182 marks out of 400 and 67.5 marks

in PET. Hence, this writ petition.

4. Counter affidavit filed by respondent 4 to 9, in

brief, is as follows:

a) The petitioner is insisting the Recruiting Agency, the

mode of selection as per his whims and fancies which is

untenable in the eye of law and such the contentions of the

Petitioner in the writ petition are baseless and far from the

truth.

b) Para 4 of the Office memorandum dated 14.08.2014

reads as under:

"The matter has, therefore, been considered in consultation with Department of Ex-servicemen, Ministry of Defence. It has now been decided that, if an ex-serviceman applies for various vacancies before joining any civil employment, he/she can avail of the benefit of reservation as ex-serviceman for any subsequent employment. However, to avail of this benefit, an ex-serviceman as soon as he/she joins any civil employment, should give self-

         declaration/undertaking        to      the   concerned      employer
                                                                WP_16005_2019
                                   11                                   SN,J

about the date-wise details of application for various vacancies for which he/she had applied for before joining the initial civil employment. Further, this benefit would be available only in respect of vacancies which are filled on direct recruitment and wherever reservation is applicable to the Ex-servicemen."

c) In view of the above, respondents 4 to 8 submitted

the declaration that they have also applied for the

subject respective posts pursuant to the notification

dated 31.05.2018. Respondents 4 to 8 issued no

objection certificates enabling them to appear for the

selection process and respondent No.9 permitted the

same in terms of Telangana State and Subordinate

Service Rules.

d) Respondent No.9 was permitted by his Unit Officer

duly granting 'no objection certificate' dated 31.10.2018

in terms of Telangana State and Subordinate Service

Rules. As per the said rules a person category of Ex-

serviceman can be permitted to appear for re-

employment one year before the completion of the

specified terms of engagement and avail. Therefore, the WP_16005_2019 12 SN,J

selection and appointment of respondents 4 to 9 is well

within the four corners of law. As the petitioner is an

unselected candidate cannot question the selection of

respondents 4 to 9. Hence, the writ petition is liable to

be dismissed.

5. The counter affidavit filed by the 2nd

respondent, in brief, is as follows:

a) The marks secured by the petitioner are less than the

cut off marks for all the posts, under ex-serviceman category.

In the final written examination the petitioner secured 182

marks, for the post of SCT SI (Civil)/Station Fire Officer and

Dy.Jailor. For the post of RSI Armed Reserve he secured

167.53 and for the post of SCT RSI SAR CPL/TSSP it is 158.50

marks.

b) On the basis of zone/unit/District wise vacancies as

furnished by the DGP, TS, DG, Fire Services etc., the

Chairman TSLPRB issued the notification. As per the revised

figures, vacancies for ex-servicemen for the post Code 12 in

Zone V are 2 and the same have been filled as per the merit

and the provisional selection list was issued on 12.07.2019.

                                                          WP_16005_2019
                               13                                 SN,J

The contention of the petitioner that vacancies were added to

Zone VI to favour the candidates of Zone VI is not correct.

c) No application under RTI Act was received from the

petitioner by the 2nd respondent office. There are no

Government instructions for verifying the certificates of Ex-

servicemen with the 3rd respondent about its genuineness

before issuing provisional selection list. The 9th respondent

submitted no objection certificate dated 31.10.2018. As per

explanation given in Sub Rule 16 of Rule 2 of the Telangana

State and Subordinate Service, the persons serving in the

Armed Forces of the Union, who retired from service, would

come under the Category of ex-servicemen, and they may be

permitted to apply for re-employment one year before the

completion of the specified terms of engagement and avail.

Therefore, there are no merits in the writ petition and hence,

the same is liable to be dismissed.

PERUSED THE RECORD :

6. The main grievance of the Petitioner in the

present Writ Petition is with regard to the action of the

Respondent authorities in reducing the vacancies after WP_16005_2019 14 SN,J

conducting examination as illegal, arbitrary and in

violation of Article 14 and 16 of the Constitution of

India and further Petitioner is aggrieved by the action

of the Official Respondents herein with regard to the

manner of conducting tests and selection of candidates.

Petitioner's prayer in the Writ Petition is to consider

the case of the Petitioner for appointment to the Post

Code Nos.11 to 19 under Ex-Servicemen Quota as per

the Notification RC No.89/Rect/Admn-1/2018, dt.

31.05.2018 issued by the 2nd Respondent.

7. Counter affidavit filed by the 2nd Respondent

relevant Paras 5 & 6 read as under :

Para 5 : It is submitted that pursuant to the above Notification Rc.No.89/Rect./Admn.1/2018, dated 31.05.2018, the Petitioner applied for SCT SI Civil and/or equivalent Posts and participated in the Recruitment Process vide Registration No.1209851. In the Final Written Examination the Petitioner secured 182 Marks, for the Post of SCT SI (Civil)/Station Fire Officer and Dy. Jailor. For the Post of RSI Armed Reserve he secured 167.53 and for the Post of SCT RSI SAR CPL/TSSP it is 158.50 marks. The marks secured by the Petitioner are less than the Cut Off Marks for all the Posts, under Ex-Serviceman Category.

                                                          WP_16005_2019
                            15                                    SN,J

Para 6 : It is submitted that at Para 9, 11, 12-14 of the Writ Petition the Petitioner has contended that in the Notification the vacancies for Post Code No.12 (RSI AR) in Zone-V was Notified as 166 and the same was reduced to 109 through a supplementary Notification due to this reason the Post for Ex-Servicemen were reduced in Zone-V. In this regard it is submitted that the TSLPRB is a recruiting agency. On the basis of Zone/Unit/District wise vacancies as furnished by the DGP, TS, DG, Fire Services etc., the Chairman TSLPRB issue the Notification. For this Recruitment the DGP Office furnished the vacancies of RSI AR as 166 for Zone-V and 109 for Zone-VI. The same was mentioned in the Notification dated 31.05.2018 issued by Chairman, TSLPRB. Through U.O. Note No.222/Plg-

I/2017, dt.05.07.2019 the DGP, TS informed the Chairman, TSLPRB that earlier vide U.O.Note dt. 03.04.2017 for Post Code 12 distribution of 275 Posts of SCT RSI was inadvertently shown as Zone-V-166 and Zone-VI-109. The Chairman, TSLPRB was requested to issue corrigendum with revised vacancies as Zone-V- 109 and Zone-VI-166. Accordingly, vide Supplementary Notification dt. 12.07.2019 the vacancies for the Post Code 12 (SCT RSI AR) was modified. As per the revised figures, vacancies for Ex-Servicemen for Post Code-12 in Zone-V are 2 and the same have been filled as per merit and the Provisional Selection List was issued on 12.07.2019. The contention of the Petitioner that WP_16005_2019 16 SN,J

vacancies were added to Zone-VI to favour the candidates of Zone-VI is not correct.

8. The relevant paras of the Counter Affidavit filed by

the Unofficial Respondents i.e., 4 to 9 portion of para 6

and 7 read as under :

Para 6 : The Petitioner being unselected candidate cannot make such baseless allegations. Further it is submitted that Respondent No.4 did not join to the post of Junior Panchayat Secretary. As far as the Office Memorandum No.36304/1/2014-Estt.(Res), dated 14.08.2014 issued by the Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training, Government of India, is concerned it reads as follows :

Para 4 : The matter has, therefore, been considered in consultation with Department of Ex- serviceman, Ministry of Defence. It has now been decided that, if an ex-serviceman applies for various vacancies before joining any civil employment, he/she can avail of the benefit of reservation as ex-serviceman for any subsequent employment. However, to avail of this benefit, an ex-serviceman as soon as he/she joins any civil employment, should give self-

declaration/undertaking to the concerned employer about the date-wise details of application for various vacancies for which he/she had applied for before joining the initial civil employment. Further, this benefit would be available only in respect of vacancies which are filled on direct recruitment and wherever reservation is applicable to the Ex-servicemen.

Para 7. In view of the above the Respondent No.4 to 8 have submitted the declaration as contemplated in the above para of the office memorandum dated WP_16005_2019 17 SN,J

14.08.2014 of Government of India declaring that, they have also applied for the subject respective posts pursuant to the notification issued by Telangana State Level Police Recruitment Board (TSLPRB) dated 31.05.2018. It is also pertinent to mention here that, the respective District Panchayat Officers i.e., Respondent No.4 to 8 have issued the 'No Objection Certificates' enabling them to appear for the selection process of TSLPRB. As such the Selection and Appointment of the answering respondents is within the four corners of law and the petitioner has no right to say anything. The selections made by the competent authority after following the due process of law.

DISCUSSION & CONCLUSION :

9. In so far as the main grievance of the Petitioner in

the present Writ Petition is concerned it is two fold :

Firstly

(i) with regard to the action of the Respondent

authorities in reducing the vacancies after conducting

examination as illegal, arbitrary and in violation of

Article 14 and 16 of the Constitution of India.

ii) A bare perusal of the relevant portion of the

Notification dt. 31.05.2018 vide Rc.No.89/Rect./Admn-

1/2018, issued by the 2nd Respondent herein reads as

under :

"The number of vacancies indicated above is only tentative and is liable to change without any notice. TSLPRB reserves the right to notify WP_16005_2019 18 SN,J

required modifications with regard to any aspect of recruitment during the process of recruitment".

10. A bare perusal of the extract of the above

Notification dt. 31.05.2018 clearly indicates that the 2nd

Respondent has a right to notify required modifications

and the circumstances that led the 2nd Respondent

Authority to revise figures/vacancies are very clearly

explained at Para 6 of the counter affidavit filed by the

2nd Respondent herein as extracted above.

11. In so far as the performance of the Petitioner is

concerned in the final written examination it is clearly

stated at Para 5 of the counter affidavit filed by the 2nd

Respondent herein that the Petitioner secured marks

less than the cutoff marks for all the posts under Ex-

Servicemen category.

Secondly :

(i) in so far as the second grievance of the Petitioner

i.e., The action of the Official Respondents herein with

regard to the manner of conducting tests and selection

of candidates. This Court opines that the Petitioner

being unselected candidate and having participated in WP_16005_2019 19 SN,J

the written examination cannot turn back and make

baseless allegations. The petitioner admittedly having

participated in the selection process and declared as

unselected for his own demerits, the Petitioner cannot

complain about the manner of conducting tests and

selection of candidates.

ii) It is settled law that a person who consciously

takes part in the process of selection cannot,

thereafter, turn around and question the method of

selection and its outcome.

iii) The Apex Court in a judgment reported in (2009)

5 SCC 511 in K.A.Nagamani v. Indian Airlines & Others

at para 54 observed as under :

"The Appellant having participated in the selection process along with the contesting respondents without any demur or protest cannot be allowed to turn around and question the very same process having failed to qualify for the promotion."

iv) The Apex Court in a judgement reported in (2013)

11 SCC 309 in Ramesh Chandra Shan and Others v. Anil

Joshi and others at para 18 observed as follows :

WP_16005_2019 20 SN,J

Para 18 : "It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome".

12. The petitioner's prayer in the Writ Petition is to

consider the case of the Petitioner for appointment to

the Post Code Nos.11 to 19 under Ex-Servicemen Quota

as per the Notification RC No.89/Rect/Admn-1/2018,

dt. 31.05.2018 issued by the 2nd Respondent, the said

prayer cannot be granted in view of the fact that the

marks secured by the Petitioner are less than the cutoff

marks for all the posts under Ex-servicemen category

as specifically averred at para 5 of the counter affidavit

filed by the 2nd Respondent.

13. Taking into consideration the principle laid down

by the Apex Court referred to and extracted above and