E. Nirmala Jyothi vs The Telangana State Public Service ...
2024 Latest Caselaw 1774 Tel

Telangana High Court

E. Nirmala Jyothi vs The Telangana State Public Service ... on 30 April, 2024

Author: N.Tukaramji

Bench: N.Tukaramji

            THE HON'BLE SRI JUSTICE SUJOY PAUL
                                 AND
           THE HON'BLE SRI JUSTICE N.TUKARAMJI

              WRIT PETITION (TR) No.4617 of 2017


ORDER:

(Per Hon'ble Sri Justice Sujoy Paul)

1. This petition was originally filed before Andhra Pradesh

Administrative Tribunal (Tribunal) and was registered as

O.A.No.4310 of 2015. Since the Tribunal was abolished, the matter

was transferred to this Court and was re-registered as W.P. (TR)

No.4617 of 2017.

Background facts:

2. The admitted facts between the parties are that the petitioner

belongs to reserved/Scheduled Caste (SC) category. She along with

other eligible candidates preferred her candidature pursuant to

Notification No.25/2012 dated 29.12.2012, for selection for the post

of Child Development Project Officer (CDPO) in Women Development

and Child Welfare Services Department. The petitioner could clear

written examination, which was followed by an oral interview, which

was held on 21.04.2014. On 06.05.2014, the selected list was

displayed, wherein the petitioner's name was missing. The

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petitioner secured 323 marks (294 marks in written examination

and 29 marks in oral interview). The petitioner preferred

representation dated 07.05.2014 to the respondents to provide

information with regard to marks secured by her and by the

candidates, who were ultimately selected. Since the grievance of the

petitioner was not settled at departmental level, she filed

O.A.No.4310 of 2015 before the Tribunal, which came on transfer

before this Court as present Writ Petition.

3. During the course of hearing, it is admitted by the learned

counsel for the parties that three SC candidates have secured

351.612, 346.112 and 340.612 marks and accordingly should have

secured berth in Open Category (OC). Since last OC candidate

secured 336.235 marks, these SC category candidates, who secured

more marks than last Open Category candidate ought to have been

treated as OC candidates and appointed in Open Category. The

respondents by ignoring merit of three SC candidates above last OC

candidate treated and placed them in the list of reserved category

candidates, which deprived three reserved category candidates to

occupy seats in their own category as per merit within the category.

Putting it differently, if three more meritorious SC category

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candidates would have been placed in OC merit list, three reserved

vacancies would have fallen in SC category. One of which could

have been occupied by the present petitioner being most meritorious

SC candidate, who secured less marks than last OC candidate.

4. The ground of the learned counsel for the petitioner is that

even if benefit of relaxation of age is given to one reserved category

candidate that will not mean that he/she cannot be considered in

OC category. For this purpose, reliance is placed on judgment of

Division Bench of this Court in the case of The Andhra Pradesh

Public Services Commission vs. R. Shreedevi 1 and it is submitted

that against the said judgment of this Court, SLP (C) No.15897 of

2018 was preferred which was dismissed on 15.11.2019. By placing

heavy reliance on the judgment of Constitution Bench of the Hon'ble

Supreme Court in the case of R.K.Sabharwal vs. State of Punjab2

ratio decidendi of which was followed in the judgments of Hon'ble

Supreme Court in the cases of State of Tamil Nadu vs. K.

Shobana 3 and Bharat Sanchar Nigam Limited vs. Sandeep

Choudary 4, the learned counsel for the petitioner strenuously

2018 SCC OnLine Hyd 47

(1995) 2 SCC 745

(2021) 4 SCC 686

2022 (11) SCC 779

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contended that proper course that should have been adopted by the

Andhra Pradesh Public Service Commission (APPSC) was that they

should have first prepared a general merit list and that list should

have been first filled up followed by filling up of backlog vacancy of

particular reserved category and remaining reserved vacancies for

the current year to be filled up thereafter. In the instant case, the

respondent had filled up backlog vacancy first and then OC and

reserved category vacancy. If Open Category vacancy would have

been filled up first, the SC category meritorious candidates, who

have secured more marks than Open Category would have secured

berth in Open Category. Resultant vacancies would have fallen

within SC category and could have been occupied by meritorious SC

category candidates. Since respondents did not follow the procedure

which was clearly laid down by the Hon'ble Supreme Court in case

of K. Shobana (cited 3rd supra), the petitioner despite having right to

be considered on merits in her own reserved category could not be

considered and was deprived for no fault on her part.

Stand of respondents:-

5. This matter was heard for sometime on the last date of

hearing. During the course of hearing, the learned counsel for

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unofficial respondents informed that respondent No.4 herein

resigned in the year 2015. If petitioner succeeds, she may be

adjusted against said vacancy and this method would save the entire

exercise of undoing the entire selection process by selecting the

persons by adopting different steps as laid down by the Apex Court

in the case of K. Shobana (cited 3rd supra).

6. Learned counsel for Telangana State Public Service

Commission (TSPSC) i.e., respondent No.1 obtained written

instructions and submits that when notification was issued and

selection took place, it was in undivided State of Andhra Pradesh.

Hence, the TSPSC has no role. Instead, it is APPSC, which is

answering respondent and should take care of the petitioner's

grievance.

7. Learned counsel for APPSC i.e, respondent No.3 has obtained

written instructions and submitted the same for perusal of this

Court. In the instructions received, it is stated as under:

"However to implement that at this point of time may lead to cascading effects. Incidentally to overcome the above situation the vacancy that has been arisen due to the resignation of one candidate i.e., 4th respondent selected under Open Category against Roster point No.34 as informed by the Counsel for 5th respondent, in that vacancy the petitioner may be accommodated to meet the ends of justice."

(Emphasis Supplied)

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8. The parties confined to the arguments to the extent indicated

above.

9. We have heard at length and perused the record.

Findings:-

10. The factual matrix of the case as projected by the learned

counsel for the petitioner and methodology and steps taken by the

APPSC was not disputed by the learned counsel for the respondents.

They candidly admitted that there were three SC candidates, who

secured more marks than the last OC candidate. It was also not

disputed that present petitioner is most meritorious SC candidate

within SC category. The marks obtained by the candidates and

referred hereinabove are not in dispute. The methodology and steps

adopted by the APPSC is also not in dispute. The Apex Court in the

case of K. Shobana (cited 3rd supra) considered its previous

judgment and opined as under:

"27. We may also note that the manner of filling up the seats has been well enunciated in the judgment in K.R. Shanthi case [K.R. Shanthi v. State of T.N., 2012 SCC OnLine Mad 5451 : (2012) 7 MLJ 241 paras 14, 18 and 19: SCC OnLine Mad paras 14 & 18- 23, incidentally authored by S. Nagamuthu, J., as he then was, though of course the principle of promissory estoppel cannot apply while he raises his contentions!] by the Madras High Court itself and appears to have been consistently followed. May be the peculiarity of the situation arising in Chemistry subject (which is in question) gives rise to this problem in the current year and

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such a problem had not apparently arisen earlier. In fact, there is no manner of doubt after the latest judgment of this Court in Saurav Yadav case [Saurav Yadav v. State of U.P., (2021) 4 SCC 542] which again refers to the steps which have to be taken to fill in those vacancies. The steps are clear in their terms: in the given facts of the case, application of those principles or steps would imply:

(a) the general merit list to be first filled in;

(b) the backlog vacancies of the particular reserved category to be thereafter filled in "first"; and

(c) the remaining reserved vacancies for the current year to be filled thereafter."

11. If we examine the methodology adopted by APPSC and steps

admittedly taken by them in the impugned selection, it will be clear

like cloudless sky that they have taken steps contrary to the law laid

down in K. Shobana case (cited 3rd supra). Instead of preparing a

general merit list, they filled up the backlog vacancies first. They

should have filled up the regular vacancies, which they have not

done. Apart from this, they treated one of the SC candidate as

reserved candidate despite the fact that she secured more marks

than the marks obtained by last OC candidate merely because she

got benefit of age relaxation. This similar action was found fault by

this Court in R. Shreedevi case (cited 1st supra) at para Nos.8 and

10, which are reproduced for ready reference:

"8. In Jitendra Kumar Singh, the Supreme Court rejected the contention that relaxation in age would deprive candidates belonging to the reserved categories of an opportunity to

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compete against general category candidates. It was pointed out that reserved category candidates have not been given any advantage in the selection process by such relaxation, as all candidates would have to appear in the same written test and face the same interview. The relaxation, per the Supreme Court, is only to enable certain candidates belonging to reserved categories to come into the zone of consideration and does not, in any manner, tilt the balance in their favour in so far as preparation of the final merit list is concerned. The Supreme Court pointed out that if a reserved category candidate gets selected on the basis of merit, he cannot be treated as a reserved candidate. On facts, the Supreme Court found that the concession availed by reserved category candidates in age relaxation had no relevance to the determination of the inter se merit on the basis of the final written test and interview and held that reserved category candidates must be included in the general category candidates on the basis of merit. The observations of the Supreme Court in para 75 are of relevance:

75. In our opinion, the relaxation in age does not in any manner upset the level playing field. It is not possible to accept the submission of the learned counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16(1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfill the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the preliminary test as also in the physical test. It is only thereafter that successful candidates have been permitted to participate in the open competition.

(emphasis is ours)

9. ...

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10. The aforestated observations strengthen us in our conviction that age relaxation does not constitute a reservation in itself. It merely allows those falling in a disadvantaged category the right to be brought within the zone of consideration so as to compete with others. Once a reservation category candidate competes for selection, be it by availing age relaxation or otherwise, he would be on par with a open category candidate if he figures in the select list on the strength of his own merit. The understanding of the APPSC that a reservation category candidate who avails age relaxation cannot aspire for an open category post therefore defies logic and is contrary to the Constitutional scheme. The Tribunal rightly appreciated the legal position and allowed the O.A. This Court therefore finds no error in the order under challenge."

(Emphasis Supplied)

12. We find substantial force in the argument of the learned

counsel for the petitioner. The respondents should have first

prepared a general merit list of OC candidates, in that event,

meritorious SC category candidates, who secured more marks than

last OC candidate i.e., 336.235, would have secured positions in

Open Category. Consequently, vacancy would have fallen in SC

category and the petitioner could have been selected in one of such

vacancy.

13. If we strictly follow the law laid down in K. Shobana case (cited

3rd supra) it will certainly have cascading effect. Considering the

aforesaid stand of the APPSC that was reflected in the written

instructions that were passed on to this Court, since respondent

No.4 herein left the job by tendering resignation, that vacancy is

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lying vacant and the petitioner can be considered against the same.

This method will not have any cascading effect. Leaned counsel

for APPSC has obtained written instructions and fairly admitted that

this option is workable and in the peculiar facts and circumstances

of this case the same can be adopted.

14. Thus, in the peculiar facts and circumstances of this case, we

deem it proper to interfere because the APPSC has not prepared the

selection list by adopting steps correctly. The petitioner had a

valuable right to be considered as per her own merit in SC category.

The respondent must consider her as meritorious SC category

candidate in her own category by treating one post as lying vacant.

It will be open for the respondents to treat meritorious SC category

candidate, who secured more marks than OC candidate as OC

candidate in accordance with law. In view of the instructions

received by APPSC and availability of one vacant post, we are not

directing to undertake the entire exercise of redoing the exercise of

preparation of selection list in the manner laid down by the Apex

Court in K. Shobana case (cited 3rd supra). Instead, we deem it

proper to direct the respondent to treat one SC category post as

vacant and consider the case of the petitioner on her own merit. If

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the petitioner is found to be suitable, she shall be given appointment

on notional basis from the date her counter parts were appointed.

This entire exercise shall be completed within 60 days from the date

of production of copy of this order. It is made clear that the

petitioner will get notional benefits of appointment, seniority and pay

fixation, but this order will not reap any actual benefit i.e., arrears of

salary and other actual benefits. It shall be the duty of both the

States i.e., respondent Nos.1 to 3 to coordinate and ensure that this

order is translated into reality within aforesaid time. The

compliance report be filed by respondents before the Registry on or

before 30.07.2024 failing which, the Registry shall list the matter

before the Bench for initiating appropriate action.

15. With the above directions, this Writ Petition stands allowed.

There shall be no order as to costs. Miscellaneous

applications, if any, pending shall stand closed.

__________________ SUJOY PAUL, J

__________________ N.TUKARAMJI, J Date: 30.04.2024 GVR