Telangana High Court
J.Devender vs Telangana State Public Service ... on 30 October, 2023
Bench: Surepalli Nanda
1
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IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 28180 of 2018
Between:
J.Devender
... Petitioner
And
Telangana State Public Service Commission and others
... Respondents
JUDGMENT PRONOUNCED ON: 30.10.2023
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
2
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 28180 of 2018
% 30.10.2023
Between:
# J.Devender
..... Petitioner
And
$ Telangana State Public Service Commission and others
... Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Mr A.Ravinder
^ counsel for Respondent No.1 : Mr D.Balkishan Rao
^counsel for respondents 2 to 4: G.P. for services
? Cases Referred:
3
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HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 28180 of 2018
ORDER:
Heard Mr J.Devender, learned counsel appearing on
behalf of the petitioner, Mr D.Balakishan Rao, learned standing
counsel appearing on behalf of respondent No.1/ TSPSC and
learned Government Pleader for Services III.
2. This Writ Petition is filed to issue an order or direction
more particularly one in the Writ of Mandamus by declaring
the action of the respondent in not considering the claim of
the petitioner for selection and appointment to the post of
Veterinary Assistant pursuant to the notification No.30 of
2017 as per his merit on par with others with all
consequential benefits.
3. The case of the petitioner, in brief, is as follows:
a) The petitioner is native of Banjara Nagar of Torrur
Mandal of Mahabubabad District and belong to ST Lambada
Community and he completed intermediate vocational course
in dairying (Dairy) in the year 2004.
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b) The 1st respondent issued notification calling online
application from qualified candidates vide notification No.30 of
2017.
c) The petitioner applied for the said examination,
appeared for the said examination and obtained 107 marks as
per key published by the Public Service Commission.
d) The petitioner is physically handicapped with 43% of
disability in respect of left lower limb.
e) The petitioner's case, however, was not considered for
appointment to the post of Veterinary Assistant. Hence,
aggrieved by the same, petitioner filed the present writ
petition.
4. Counter affidavit filed by the 1st respondents, in
brief, is as follows:
a) The candidates who secured lower marks than the
petitioner were considered for selection and appointment on
the ground that they belong to agency area Schedule Tribe.
The petitioner has not submitted ST Agency Area Certificate.
As per G.O.Ms.No.64, dated 04.04.1988 the post of Veterinary
Assistants in Animal Husbandry Department shall be filled in,
in the Scheduled Areas of Telangana State, only by the local
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members of the Scheduled Tribes, notwithstanding anything
contained in any other order, Rule or Law in force.
b) The petitioner does not belong to ST Agency Area of
Mahabubabad District. There is no agency area in
Mahabubabad to consider the case of the petitioner.
Therefore, the writ petition is liable to be dismissed as devoid
of merits.
5. The contenton of the respondents 2 to 4 as per the
Counter affidavit filed, is as follows:
The vacancies were notified vide notification No.30 of
2017, dated 02.06.2017 and the selection of petitioner is
concerned, it is under the purview of TSPSC, Hyderabad being
recruiting agency. Therefore, the writ petition is liable to be
dismissed.
PERUSED THE RECORD
6. The counter affidavit filed on behalf of respondent
No.1, in particular, paras 7 to 9, read as under:
"7. In this connection, I respectfully submit that the
Commission has notified Notification No. 30/2017 to the
post of veterinary assistant in Animal Husbandry
Department. As per para 9 IV of Notification "As per
G.O.Ms No 64, Social Welfare (V) Department Dated
04/04/1988 the post of Veterinary assistants in Animal
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Husbandry Department shall be filled in, in the
Scheduled Areas of Telangana State, only by the local
members of the Scheduled Tribes, notwithstanding
anything contained in any other Order, Rule or Law in
force". The following para is specifically mentioned in the
notification regarding reservation to local ST candidates
of scheduled areas and the same is produced here under
for kind perusal.
iv) Reservation to local S.T candidates of
scheduled areas (Agency area)
As per G.O.Ms. No.64, Social Welfare (V)
Department, Dt. 04/04/1988, the post of
Veterinary Assistants in Animal Husbandry
Department shall be filled in, in the Scheduled
Areas of Telangana State only by the local
members of the Scheduled Tribes, not
withstanding anything contained in any other
Order, Rule or Law in force.
8. In view of the above, I respectfully submit that
the petitioner herein does not belong to ST Agency
Area of Mahabubabad District (Which was under
erstwhile Warangal District). There is no agency
area in Mahabubabad to consider his case in
agency area, and he has not submitted his ST
Agency Area certificate. Hence he did not get
selection.
9. I respectfully submit that the petitioner could
not get selection as he did not produce the
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required certificate of ST Agency Area, though he
is higher in merit when compared with the marks
of selected candidates in agency area since the
posts in ST Agency Area are required to be filled
only with ST candidates of agency area as per
rules. All the vacancies are filled up in agency area
except two (2) vacancies pertaining to ST (Woman) and
two (2) vacancies pertaining to PH candidates and the
petitioner herein is not eligible against these vacancies.
It is not possible to fill the unfilled vacancies in any
agency area without this certificate, just because they
belong to the district concerned. As such, the plea of the
petitioner to consider his case in any of the unfilled
vacancies of agency area cannot be considered as it will
be contrary to the rules. In the circumstances, the writ
petition is liable to be dismissed.
7. The counter affidavit filed on behalf of
respondents 2 to 4, in particular paras 3 and 4 read as
under:
"3. In reply to para 2 of the petitioners affidavit, it is
submitted that as per the permission accorded by the
Government vide G.O.Ms.No.8 AH DD& F, dated
03.05.2017 necessary indent has been placed before the
Secretary, TSPSC, Hyderabad for filling up (54) vacant
posts of Veterinary Assistant in Veterinary & Animal
Husbandry Department in the State. The vacancies were
notified vide notification No.30/2017, dated 2.6.2017.
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Regarding the selection of petitioners are concerned, it
is under the purview of the TSPSC, Hyderabad being
recruiting agency.
4) Further, it is submitted that, regarding the selection
of procedure is concerned, it is under the purview of the
TSPSC, Hyderabad being recruiting agency for the post
of veterinary Assistant
DISCUSSION AND CONCLUSION
DISCUSSION
8. It is the specific case of the petitioner that the petitioner
is native of Banjara Nagar of Torrur Mandal of Mahabubabad
District and belongs to ST Lambada Community. The
petitioner completed Intermediate Vocational course in
Dairying (Dairy) from Board of Intermediate Education A.P in
the year 2004 and that the petitioner hails from poor family
with a rural background and he is fully eligible and qualified
for the post of Veterinary Assistant. The petitioner in response
to notification No.30/2017, dated 02.06.2017 applied on line
and received hall ticket No.3020171156 to appear for written
examination. The petitioner obtained 107 marks in the
written examination and the petitioner was provisionally
selected for the post of Veterinary Assistant. It is further the
case of the petitioner that inspite of the petitioner having
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stood in the merit list in the ST category, the respondents did
not consider the petitioners candidature for appointment to
the post of Veterinary Assistant. Aggrieved by the same, the
petitioner filed the present writ petition.
9. The petitioner placed reliance On the judgment of
Division Bench order dated 02.11.2006 of High Court in
W.P.No.14591 of 2006 and the order dated 15.12.2018 of the
Division Bench in W.P.No.1651 of 2014.
10. Learned Government Pleader appearing on behalf of
respondents 2 to 4 submits that regarding the selection of
procedure is concerned, it is under the purview of the 1st
respondent being the recruiting agency for the post of
Veterinary Assistant. The grievance of the petitioner for not
being selected for the post of Veterinary Assistant is
concerned it is 1st respondent, who has to consider the same.
11. Learned standing counsel appearing on behalf of the 1st
respondent mainly contends that the petitioner has not
submitted ST Agency Area Certificate, hence, the petitioner's
case was not considered, though the petitioner is higher in
merit when compared with the marks of selected candidates in
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agency area, since the posts for ST Agency Area are required
to be filled only with ST candidates of Agency Area as per
rules. Further learned counsel appearing on behalf of the 1st
respondent contends that it is not possible to fill the unfilled
vacancies in any Agency Area without ST Agency Area
Certificate, just because the petitioner belongs to the District
concerned.
12. Similar issue came up for consideration before the
Division Bench of High Court at Hyderabad in
W.P.No.14591 of 2006 and it was held in the said
judgment that once it is admitted that the candidates
are residents of the unit of appointment viz the District,
there cannot be a sub-classification of scheduled tribes
residing in scheduled areas of a District and scheduled
tribes residing in non scheduled areas of the same unit
of appointment and further observed that as a matter of
fact a discrimination based upon residence is opposed
to the constitution. The Division Bench of High Court at
Hyderabad in the said order at paras 10 and 11
observed as under:
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"10. As seen from the notification, it was issued under
Paragraph-5(1) of the V-Schedule to the Constitution.
The expression used in the notification is "local
members of the Scheduled Tribes". The expression
"local members" is not defined in the Constitution.
Considering the special status of the State of Andhra
Pradesh, the aforesaid notification has to be read, in
tune with the Presidential Order, 1974 issued, in
exercise of the powers conferred by Clauses 1 and 2 of
Article 371D of the Constitution. Though the Presidential
Order does not use the expression "local members" it
uses the expression "local candidate". Paragraph-4 of
the Presidential Order defines a local candidate. This
definition is in the context of what a local area is. The
expression "local area" is to be understood in the
context of Paragraph-3 of the Presidential Order.
11. Therefore, the term "local members" appearing in
G.O.Ms.No.68, dated 16.04.1988, has to be understood
in the context of the expressions "local area" and "local
candidate" as indicated in the Presidential Order. The
Presidential Order carves out certain posts as District
Posts, Zonal Posts, Multi-Zonal Posts and State-wide
Posts. If the unit of appointment is a District, the local
area for appointment to such a post would be the
District. If the local area for appointment to a post is a
District, a person residing in that area is a local
member.
13. Under similar circumstances, the Division Bench of
High Court at Hyderabad vide order dated 15.12.2018
in W.P.No.1651 of 2014, directed the respondents
therein to consider the claim of the petitioners therein
for appointment of MPHA without reference to the
agency area. In particular, the said order at para 13
and 14, reads as under:
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"13. The only case of the respondents is that the
petitioners do not belong to Scheduled Tribes of
particular area, whereas, admittedly, the petitioners are
Scheduled Tribes of Warangal District. Thus, in view of
the judgment rendered by this Court as stated above,
the petitioners are also eligible to be considered for the
post of MPHA (Male).
14. Accordingly, the writ petition is allowed and the
respondents are directed to appoint the petitioners for
the post of MPHA (Male) on contract basis within a
period of four (4) weeks from today.
14. The affidavit filed by the petitioner in support of
I.A.No.1 of 2022 in W.P.No.28180 of 2018, in particular,
at para Nos. 5 and 7, it is specifically averred as under:
"5. It is respectfully submitted that opposing the claim in
the Writ Petition, a counter affidavit is filed on behalf of
the 1* Respondent inter alia stating that in Scheduled
Areas, candidature of members of local Scheduled Tribe
candidates alone has to be considered and therefore, my
claim cannot be considered despite vacancies are
available in the District. Several candidates were given
appointment subsequent to the filing of the present Writ
Petition after deputing them for training though they did
not even apply pursuant to the recruitment notification.
A copy of one such proceeding is herewith enclosed for
the kind perusal of this Hon'ble Court.
7. It is respectfully submitted that subsequent to the
filing of the writ petition, it came to light that certain
individuals were given appointments as Veterinary
Assistants in the same unit of appointment. I have
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obtained information under the Right to Information Act,
which indicates that only 462 of 541 vacancies notified
were filled up and that 76 vacancies are available stating
the above facts, I have submitted a representation to
the 1st respondent and requested to extend similar
benefit in my case too.
15. This Court opines that the plea of the 1st respondent as
projected in the counter affidavit filed in the present writ
petition that in Scheduled Areas, candidature of members of
local Scheduled Tribe candidates alone has to be considered is
contrary to the letter and spirit of the two judgments rendered
by this Court in W.P.No.14591 of 2006 and W.P.No.1651 of
2014 and a bare perusal of the full text of the judgments
dated 02.11.2006 passed in W.P.No.14591 of 2006 and the
judgment dated 15.12.2018 passed in W.P.No.1651 of 2014
clearly indicates that this Court was pleased to hold that
District is to be reckoned as local area and the District has to
be taken as unit and the same cannot be confined to a
particular area.
16. Taking into consideration the aforesaid facts and
circumstances of the case, and the averments made by
the petitioner in paras 5 and 7 of the affidavit filed in
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support of I..No.1 of 2022 (referred to and extracted
above) and duly considering the view taken by the
Division Bench of High Court at Hyderabad in its
judgments dated 02.11.2006 passed in W.P.No.14591 of
2006 and the judgment dated 15.12.2018 passed in
W.P.No.1651 of 2014, the writ petition is allowed and
the 1st respondent is directed to consider the
petitioner's representation dated 06.04.2022 for
appointment to the post of Veterinary Assistant
pursuant to the Notification No.30/2017, dated
02.06.2017 issued by the 1st respondent as per
petitioner's own merit in the existing/unfilled vacancies
on the analogy of orders of appointment issued in
respect of the certain other individuals duly considering
the view taken by the orders of the Division Bench of
High Court at Hyderabad in its judgment dated
02.11.2006 passed in W.P.No.14591 of 2006 and the
Division Bench judgment dated 15.12.2018 of the High
Court at Hyderabad passed in W.P.No.1651 of 2014,
(referred to above) within a period of three weeks from
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the date of receipt of copy of the order and duly
communicate the decision to the petitioner. No costs.
Miscellaneous petitions, if any, pending shall stand
closed.
__________________
SUREPALLI NANDA, J
Date: 30.10.2023
Note: L.R.Copy to be marked.
b/o kvrm
