Telangana High Court

Nagaraj Agnoor vs The State Of Andhra Pradesh, Rep.By Its ... on 10 July, 2024

         *THE HON'BLE SRI JUSTICE SUJOY PAUL
                          AND
 *THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

               +WRIT PETITION No.22195 of 2012


% 10-07-2024

# Nagaraj Agnoor
                                                       ...Petitioner

vs.


$ The State of A.P., rep. by its Chief
  Secretary to Government of A.P.,
  Secretariat, Hyderabad and Others
                                                   ... Respondents


!Counsel for the Petitioner: Smt. K.Udaya Sri

^Counsel for Respondent No.1: G.P. for General Administration
^Counsel for Respondent Nos.2 & 6: Sri Y.Rama Rao, Standing
                                     Counsel for High Court
^Counsel for Respondent No.7: Sri G.Mohan Rao
^Counsel for Respondent No.8: Sri V.Hari Haran
^Counsel for Respondent No.9: Sri A.Narsimha
^Counsel for Respondent No.10: Sri K.Venkat Reddy



<Gist :

>Head Note :

? Cases referred
                                    2



       IN THE HIGH COURT FOR THE STATE OF TELANGANA
                           HYDERABAD
                                ****
                WRIT PETITION No.22195 of 2012
                 (Per Hon'ble Sri Justice Sujoy Paul)

Between:

Nagaraj Agnoor
                                                    ...Petitioner
vs.

The State of A.P., rep. by its Chief
Secretary to Government of A.P.,
Secretariat, Hyderabad and Others

                                                    ... Respondents

JUDGMENT PRONOUNCED ON: 10.07.2024


             THE HON'BLE SRI JUSTICE SUJOY PAUL
                             AND
     THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO


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

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

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


                                                  ___________________
                                                     SUJOY PAUL, J



                                _____________________________________
                                NAMAVARAPU RAJESHWAR RAO, J
                                  3



           THE HONOURABLE SRI JUSTICE SUJOY PAUL
                           AND
     THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                 WRIT PETITION No.22195 of 2012

ORDER:

(per Hon'ble SP,J)

Heard Smt.K.Udaya Sri, learned counsel appears for

the petitioner, Sri Y.Rama Rao, learned Standing Counsel for

Telangana State High Court, appears for respondent No.2 and

Sri V.Hariharan, learned Senior Counsel representing on behalf

of Sri Srikanth Hariharan, learned counsel appears for

respondent No.10.

2. With the consent, finally heard.

3. In this petition filed under Article 226 of the Constitution

of India, the singular interesting question is as to who has the

preferential right of appointment to the post of Junior Civil

Judge, pursuant to the notification dated 25.01.2011. The

ancillary question is, whether seniority of Feeder post shall be

the determining factor for selecting the candidate or the age of

the candidate.

4. Learned counsel for the petitioner, at the outset, submits

that she is confining her relief only against respondent No.10.

5. The admitted facts between the parties are that the

petitioner and respondent No.10, both were appointed on the

basis of steno-typist (Personal Assistant). The petitioner was

initially appointed on 12.07.1990 and his probation was

declared on 12.01.1993. Whereas, respondent No.10 was

subsequently appointed on 15.04.1991 and his probation was

declared on 15.10.1993. The parties admitted that the

petitioner was not only appointed prior to respondent No.10, his

probation was also declared before him.

6. The petitioner, respondent No.10 and other eligible

candidates submitted their candidature for the post of Junior

Civil Judge by way of Transfer. The Andhra Pradesh State

Judicial Service Rules, 2007 (for short "the Rules of 2007")

prescribes two modes of selection to the post of Junior Civil

Judge, namely:- i) Direct Recruitment and ii) Recruitment by

Transfer. In the instant case, admittedly, the issue relates to

"Recruitment by Transfer". Since the petitioner and respondent

No.10 secured same marks i.e., 48.90, the claim of petitioner is

that he should have been given preference over respondent

No.10, because, he is senior to respondent No.10 on the feeder

post of Steno Typist (Personal Assistant). The contention of

learned counsel for the petitioner is that by way of Rule 25 of

the Rules, 2007, the Andhra Pradesh State and Subordinate

Service Rules, 1996 (for short "the Rules of 1996") were

borrowed to the extent, the same are not inconsistent with the

Rules of 2007 and to the extent not covered by the Rules of

2007. The Rules of 2007 do not prescribe any criteria or

method to decide as to which candidate should get preference, if

two candidates have secured same marks.

7. It is submitted that the Rules of 1996 deals with this

situation. Heavy reliance is placed on Rule 5 and Rule 34 of the

Rules of 1996. It is urged that Rule 5, in clear terms, provides

that the selection although will depend on merit and the ability,

the seniority needs to be considered, where merit and ability are

equal or approximately equal. In the light of aforesaid, the

petitioner was having preferential right and the respondents

erred in giving appointment to respondent No.10 by depriving

the petitioner.

8. Learned counsel for the petitioner fairly submitted that

respondent No.10 was appointed on 18.03.2013 whereas, the

petitioner pursuant to a subsequent selection was appointed on

17.08.2013 as Junior Civil Judge. The petitioner is not praying

that the appointment of respondent No.10 be set aside. The

petitioner is also not praying for any arrears of pay from

18.03.2013. He is only claiming the seniority and notional

benefits over and above respondent No.10.

9. Sounding a contra note, learned counsel for official

respondents, submits that the Rule 25 of Rules, 2007 and Rule

5 of the Rules of 1996 are not applicable. Instead, the Circular

of High Court on which heavy reliance is placed in the counter

will be applicable. By placing reliance on Roc.No.125/99-R.C.,

dated 28.07.1999, it is submitted that the preferential right

must be given to a candidate who is older in age i.e., respondent

No.10. Thus, no fault can be found in the impugned action of

respondents.

10. Learned counsel for respondent No.10 almost borrowed

the same arguments and submitted that the selection of

respondent No.10 was justifiable.

11. The parties confined their argument to the extent

indicated above. We have heard the parties at length and

perused the record.

12. The aforesaid factual backdrop makes it clear that it is

admitted between the parties that the petitioner right from his

appointment and confirmation, is senior to respondent No.10.

It is also admitted that the petitioner and respondent No.10,

pursuant to the same notification, submitted their candidature

and participated in the selection and secured same marks i.e.

48.90. Thus, the singular question needs to be decided is what

should have been the criteria for selecting the candidate, if both

the candidates have secured same marks.

13. As noticed above, the parties are at loggerheads on the

question of criteria which can be made applicable for

determination of preferential right. The petitioner placed reliance

on the Rules of 2007 and the Rules of 1996, whereas the official

respondents placed reliance on the Circular of the High Court

dated 28.07.1999.

14. For ready reference, it is apt to consider the relevant

provisions. Rule 25 of the Rules of 2007 reads as under:

"25. Applicability of General Rules: The A.P. State and Subordinate Service Rules, 1996, which are not inconsistent with these Rules and to the extent not covered by these Rules, shall apply to the Service.

(Emphasis Supplied)

15. A plain reading of this Rule leaves no room for any doubt

that the Rules of 1996 were borrowed to the extent the Rules of

2007 are silent or not inconsistent with the Rules of 2007. The

Rules of 1996 can be pressed into service to the extent not covered

by the Rules of 2007. Thus, there is no manner of doubt that the

Rules of 1996 have been borrowed in the Rules of 2007.

16. During the course of hearing, learned counsel for official and

unofficial respondents could not point out any provision from the

Rules of 2007 which can throw light on the criteria when merit of

both the candidates is same. Thus, the Rules of 1996 must

operate to that extent. Rule 5 of the Rules of 1996 which deals

with selection posts reads thus:

"5. Selection Posts:-

a) All first appointments to a State Service and all promotions/appointment by transfer in that Service shall be made on grounds of merit and ability, seniority being considered only where merit ability, seniority being considered only where merit and ability are approximately equal, by the appointing authority as specified in sub-rule (a) of Rule 6 from the panel of candidates. Such panel shall be prepared as laid down in Rule 6 by the appointing authority or any other authority empowered in this behalf."

(Emphasis Supplied)

17. A plain reading of clause (a) of Rule 5 makes it crystal clear

that where merit and ability is same or approximately equal, the

seniority should be the criteria for selecting the candidate.

18. Thus, a conjoint reading of the Rule 25 of Rules of 2007 and

the Rule 5 of Rules of 1996 makes it clear that the petitioner being

senior to respondent No.10 had preferential right of appointment

over respondent No.10 who was selected merely because he was

older in age.

19. So far as the circular of High Court on which reliance is

placed by official respondents is concerned, on the forehead of the

said circular, the subject is noted as under:

" HIGH COURT OF ANDHRA PRADESH :: HYDERABAD.

      R.O.C.No.125/99-RC                           DATED: 28-7-1999.

                                CIRCULAR

          SUB:    PUBLIC SERVICES - Recruitment to the posts

under APJMS and APLGS in all the units in the State

- Furnishing of Roster Points to the notified vacancies and preparation of Common Merit Lists of selected candidates - Certain Instructions - ISSUED."

20. The subject shows that it deals with recruitment to the post

under APJMS and APLGS. The circular was not issued for

recruitment/selection to the Judicial Services. The said circular

for yet another reason cannot be pressed into service. The

statutory Rules of 2007 and 1996 cover the aspect of preferential

right for selection, and therefore, no executive instruction can

supersede the statutory rules. The rules must prevail as per

concept of 'dominion paramountcy'.

21. The conundrum is whether the appointment of respondent

No.10 should be set aside, and in lieu thereof, the present

petitioner should be directed to be appointed from the said date?

22. Pertinently, learned counsel for the petitioner fairly