Telangana High Court

Matheen Khan vs The State Of Telangana on 19 July, 2024

Author: B. Vijaysen Reddy

Bench: B. Vijaysen Reddy

       THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

 WRIT PETITION Nos.46117, 46305 and 46878 of 2018 and
                162 and 17002 of 2019

COMMON ORDER:

Since the issue involved in all these writ petitions is similar,

this batch of writ petitions is disposed of by this common order.

The facts in WP.No.46117 of 2018, being the lead case, are set out

hereunder for the sake of convenience.

2. It is submitted that the petitioners are fully qualified and

eligible for the post of Sub Engineer in the respondent No.2-

company and have submitted online application, pursuant to the

notification issued by the respondent No.2, for direct recruitment to

the post of Sub Engineer (Electrical) vide notification No.02/2018

dated 24.05.2018 for 497 vacancies to be filled up by Direct

Recruitment (General/Limited), inviting online applications from

qualified candidates. The petitioners have been issued Hall Tickets

and they appeared for written examination on 08.07.2018.

3. It is submitted that as per the notification, for the post of

Sub Engineer, one must have Diploma in Electrical Engineering or

Electrical and Electronics Engineering or Graduation or any other

equivalent qualification. That as per Part-III Annexure 1 of the

Andhra Pradesh State Electricity Board Service Regulations which

have been adopted by the respondent No.2-company, the method

of recruitment for the post of Sub Engineer is only through direct

recruitment and there is no channel for promotion. Therefore, the

respondent No.2 has to fill up all the vacancies which are notified in

the notification dated 24.05.2018 through direct recruitment.

4. It is submitted that only candidates who are qualified in

written examination with high rank will be called for verification of

Original Certificates/Documents and there is no interview for the

said post. The minimum qualification in written examination for OC

is 40%, BC 35%, SC/ST 30%. The procedure has been prescribed

to fill the vacancies both for open/local candidates in 20:80.

The provisional selection shall be made at the first instance which

shall be confirmed later. The selection of candidates will be made

100% on written examination. All the petitioners appeared for

written examination and secured merit marks and they are in the

zone of consideration.

5. It is submitted that the petitioners received call letters from

respondents No.3 to 7 informing that as per the result of Written

Examination, the petitioners herein have been called for verification

of Original Certificates/Documents on 24.09.2018 and 25.09.2018

but certificate verification was postponed due to administrative

reasons. Thereafter, again the petitioners received communication

dated 24.09.2018 directing them to appear for verification of

Original Certificates/Documents on 03.10.2018/04.10.2018/

05.10.2018. However, the verification of certificates was again

postponed due to General Assembly Elections.

6. It is submitted that the petitioners were eagerly waiting for

call letters for verification of Original Certificates/Documents from

the respondents No.2 to 7 and they were surprised to know that

some individuals have received communication from respondents

No.3 to 7 informing that the verification of Original Certificates/

Documents is scheduled on 19.12.2018 and 20.12.2018.

The petitioners, having received communication twice for

verification of Original Certificates/Documents, have been denied

the call letters, which is nothing but arbitrary, unjust and violative

of Articles 14 and 16 of the Constitution of India. The petitioners

submitted representation to the respondent No.2 on 17.12.2018.

Despite the same, the respondent No.2 proceeded with verification

of certificates of less meritorious candidates.

7. The case of the respondents is that the Telangana Northern

Power Distribution Company Limited (TSNPDCL) issued notification

notifying 497 vacancies and inviting applications online from

qualified candidates for the post of Sub-Engineer (Electrical).

In the notification, it was clearly specified that the number of

vacancies are subject to variation and the last date for submission

of online applications is 18.06.2018. The post of Sub-Engineer Class

III, category 2, Part-III falls under APSEB Engineering Services.

The method of recruitment to the post is by direct recruitment

and/or recruitment by transfer. The qualification prescribed is that

one have must a Diploma in Electrical/Mechanical/Civil/Telecom

Engineering or any other equivalent qualification recognized by the

Board.

8. It is submitted that the in-service employees and the Trade

Unions have been making representations for filling up of the posts

by appointment by transfer with eligible in-service candidates

before filling up of the vacancies through direct recruitment.

Keeping in view the request made by the employees Associations,

the eligible in-service candidates have been considered and about

105 in-service employees have been appointed by transfer as

Sub-Engineers. Five vacancies in the cadre of Sub-Engineers were

also filled up on compassionate grounds from among the

dependents of the deceased employees. It was also decided to fill

up only 427 vacancies of Sub-Engineers instead of 497 vacancies as

notified in the Notification No.2/2018.

9. It is submitted that the select list was drawn up in

accordance with the notification confining to 427 candidates of

Sub-Engineers and the candidates have been called for verification

of original certificates in the said vacancy only. The procedure

adopted by the TSNPDCL in confining to filling up of vacancies of

427 posts is perfectly legal and justified. The notification No.2/2018

clearly specified that mere securing minimum qualifying marks does

not confer any right to the post. The method of recruitment as per

Annexure-I, Part III read with Regulation 6 (a) is by (i) direct

recruitment; (ii) appointment by transfer from the following

categories of employees with a minimum of two (2) years

experience after acquiring diploma qualification - (a) Tracer,

(b) LDC, (c) Record Assistant, (d) Office sub-ordinate, (e) Blue Print

Operator, (f) O&M Staff, and (g) construction staff.

10. It is submitted that in view of the decision taken to consider

the in-service personnel from the lower cadre through recruitment

by transfer and the reduction in the number of vacancies for direct

recruitment, only eligible candidates were issued with the call

letters. The petitioners did not figure in the list of 427 meritorious

candidates. Therefore, they were not called for the verification of

certificates. However, in adherence to the interim orders passed by

this Hon'ble Court, the petitioners were called for the verification of

certificates on 24.12.2018, but the same does not confer any right

on the petitioners to be appointed to the post of Sub-Engineer.

11. Mr. K.G. Krishna Murthy, learned senior counsel appearing for

Ms. K. Kiranmayee, learned counsel for the petitioners, submitted

that the petitioners have been issued call letters twice for

verification of their certificates. The respondents, having notified

497 posts, cannot reduce the vacancy position. The reduction of

vacancies is not done as is being projected by them.

The respondents have diverted the notified posts and thereby

committed illegality. The posts of Sub-Engineer were notified to be

filled through direct recruitment and as such, the question of

diverting the posts for recruitment by transfer is not permissible

and that too after notification was issued. The decrease in the

number of vacancies is illegal, arbitrary and violative of Articles 14

and 16 of the Constitution of India.

12. Learned senior counsel for the petitioners relied upon the

following judgments:

SHANKARSAN DASH v. UNION OF INDIA 1; R.S. MITTAL

v. UNION OF INDIA 2; ASHA KAUL v. STATE OF JAMMU AND

KASHMIR 3; SANDEEP SINGH v. STATE OF HARYANA 4 and

SHAIK MUSTAPHA v. TRANSMISSION CORPORATION OF

TELANGANA STATE LIMITED [WP.No.3153 of 2018 and batch

dated 06.03.2020].

(1991) 3 SCC 47

1995 Supp (2) SCC 230

(1993) 2 SCC 573

(2002) 10 SCC 549

13. In SHANKARSAN DASH's case (1 supra), the Supreme

Court held as under:

7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.

This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759], or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 :

(1985) 1 SCR 899] .

In R.S. MITTAL's case (2 supra), the Supreme Court held as

under:

"10. ... It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing

authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified."

In ASHA KAUL's case (3 supra), the Supreme Court held as

under:

"8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment (State of Haryana v. Subhash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : AIR 1973 SC 2216] ; Mani Subrat Jain v. State of Haryana [(1977) 1 SCC 486 : 1977 SCC (L&S) 166 : AIR 1977 SC 276] ; State of Kerala v. A. Lakshmikutty [(1986) 4 SCC 632 : (1986) 1 ATC 735 : AIR 1987 SC 331] ) but that is only one aspect of the matter. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category, -- in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select

list and then communicates to the Government -- the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any Government can adopt such a stand with any justification today. This aspect has been dealt with by a Constitution Bench of this Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47 :

1991 SCC (L&S) 800 : (1991) 17 ATC 95] where the earlier decisions of this Court are also noted."

In SANDEEP SINGH's case (4 supra), the Supreme Court

held as under:

"3. ... That apart, even on first principle, it appeals to us to commend that the vacancies available in any particular service till the date of interview at least should be filled up from the very same examination unless there is any statutory embargo for the same. In the case in hand, no statutory embargo has been pointed out to us. In this view of the matter, the judgment of this Court in Hooda [Virender S. Hooda v. State of Haryana, (1999) 3 SCC 696 : 1999 SCC (L&S) 824] should apply to the facts and circumstances ..."

14. Mr. G. Vidyasagar, learned senior counsel appearing for the

respondents, submitted that initially call letters were issued to all

the candidates including the petitioners as they were within the

zone of consideration of the vacancies notified. Later, it was found

that call letters were issued in excess of posts available for direct

recruitment and as such, the certificate verification scheduled in

October 2018 was cancelled/postponed. In December 2018 call

letters were issued to the candidates for filling up 427 posts only.

Note on Page No.1 of the notification clearly specified that the

number of vacancies are subject to variation at the time of

notification. Seventy (70) posts have already been filled up by

appointment by transfer. The vacancies that have arisen subsequent

to 24.05.2018 are not available for recruitment to the posts notified

in the vacancies dated 24.05.2018 and the same was clearly

specified in Para No.V (i) of the notification. All the vacancies, which

were available as on 24.05.2018, have been filled up. As on the

date of finalization of recruitment, only 427 vacancies were

available, out of which six (6) posts were carried forward, as they

were not eligible candidates in the respective categories.

15. Learned senior counsel for the respondents further submitted

that the petitioners are not eligible to be considered in the

vacancies which have arisen subsequent to 24.05.2018. It has been

held in catena of decisions that it is open to the authorities to

reduce the vacancies even during the recruitment process and even

after declaration of written examination, based on assessment of

requirement. The writ petitions are not maintainable also on the

ground that selected candidates have not been impleaded in the

writ petitions and as the petitioners have not challenged the

selection of the candidates by transfer/compassionate appointment.

16. Learned senior counsel for the respondents relied upon the

following judgments:

STATE OF HARYANA v. SUBASH CHANDER MARWAHA5;

SHANKARSAN DASH's case (1 supra); UNION PUBLIC SERVICE

COMMISSION v. GAURAV DWIVEDI 6; KERALA STATE ROAD

TRANSPORT CORPORATION v. AKHILESH 7 and DINESH

KUMAR v. SOUTH CENTRAL RAILWAY 8.

17. In SUBASH CHANDER MARWAHA's case (5 supra),

the Supreme Court held as under:

"10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government

(i) shall not make such appointments by travelling outside the list, and (ii) shall make the selection for appointments

(1974) 3 SCC 220

(1999) 5 SCC 180

(2019) 14 SCC 96

(2019) 12 SCC 798

strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, Rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence.

11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College [AIR 1962 SC 1210 : 1962 Supp (2) SCR 144 : (1962) 2 SCJ 208 : (1962) 1 Lab LJ 247 : (1962) 4 FIR 507.] that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance.

Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived."

In SHANKARSAN DASH's case (1 supra), the Supreme

Court held as under:

"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any

right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons ..."

In GAURAV DWIVEDI's case (7 supra), the Supreme Court

held as under:

6. ... There is no rule which has been brought to our notice which prohibits the change in the number of vacancies which are once notified. Indeed it is not necessary or incumbent upon the Government to fill up all the vacancies which are notified even if candidates have been selected...

7. We are unable to agree with this contention. Once it is considered, and in our opinion rightly so, that the number of vacancies to be filled could be reduced then the rules do not stipulate that the entire process of examination must be completed, including the conduct of the interview/viva voce, on the basis of the original number of vacancies which were notified..."

In AKHILESH's case (7 supra), the Supreme Court held as

under:

"3. The short question arising for consideration in these appeals is whether mere empanelment can justify a mandamus to make appointments because vacancies may exist. Additionally, whether mandamus can be issued to make appointments from the panel on vacancies which may have arisen subsequently due to superannuation, etc. during the life of the rank list. The question assumes significance in view of the stand of the appellant that it did not wish to make any further appointments due to a financial crunch

and a skewed bus to passenger ratio, and for which purpose it had also appointed a committee to recommend remedial measures.

4. We have heard the counsel for the parties and opine that the order of the High Court is unsustainable. The cadre strength has rightly been held not to be a relevant consideration. The High Court has erred in issuance of mandamus to fill up a total of 97 vacancies, including those arising subsequently but during the life of the rank list. Vacancies which may have arisen subsequently could not be clubbed with the earlier requisition and necessarily had to be part of another selection process. The law stands settled that mere existence of vacancies or empanelment does not create any indefeasible right to appointment. The employer also has the discretion not to fill up all requisitioned vacancies, but which has to be for valid and germane reasons not afflicted by arbitrariness. The appellant contends a financial crunch along with a skewed staff/bus ratio which are definitely valid and genuine grounds for not making further appointments. The Court cannot substitute its views over that of the appellant, much less issue a mandamus imposing obligations on the appellant Corporation which it is unable to meet."

In DINESH KUMAR's case (8 supra), the Supreme Court

held as under:

"33. However, in the present case, the appellants were called in for the verification of documents as extra candidates to replace the candidates selected who do not join for one or the other reason. Such candidates were called to meet out the necessity to fill up of posts if the meritorious selected candidates do not join. In terms of Shankarsan Dash case [Shankarsan Dash v. Union of

India, (1991) 3 SCC 47 : 1991 SCC (L&S) 800] , the State has a right not to appoint candidates even if they are in merit list. The appellants do not possess indefeasible right of appointment. It is not the case, that any candidate lower in merit has been appointed or the appointments have been made by pick and choose method ignoring merit. The reason given by the Railways in the counter-affidavit is that the requirement to fill 624 posts was not felt in pursuance of an advertisement in question as there were two simultaneous selection processes in which 2839 candidates were appointed. Such reason cannot be said to be wholly arbitrary which warrants a mandate to the respondents to appoint the appellants who are not in merit list but at best in the waiting list. The State has right not to fill up any vacancy advertised. The stand that the requirement to fill up 624 vacant posts was not felt cannot be said to be arbitrary warranting a mandamus to appoint the appellants. The State cannot be directed to appoint candidates, when it does not require the posts to be filled up. The decision not to fill up vacancies has been taken for appropriate reasons and is neither arbitrary nor discriminatory."

18. In the reply affidavit of the petitioners to the counter affidavit

of the respondents, it is stated that all the 497 posts notified in the

subject notification ought to have been filled. In response to the RTI

application made by one of the petitioners, the respondent No.2

informed that as on December 2018, when verification of

certificates was being undertaken, there were 496 vacant posts,

thus, the contention of the respondents that there were only 427

posts is false. The respondents undertook the exercise of making

appointments by transfer and compassionate appointments

invoking Regulation 14(a)(i) of APSEB Service Regulations Part-II

arbitrarily and diverted the notified posts. The respondents, having

notified 497 posts for direct recruitment on 24.05.2018 and having

conducted examination on 08.07.2018, cannot invoke emergency

clause as there existed no undue delay or necessity for an

appointment to be made otherwise than specified in the

Regulations.

19. Learned senior counsel for the petitioners alternatively

submitted that the petitioners are eligible to be appointed as

Sub-Engineers, as they were sent call letters for verification of the

documents. He submitted that in the application in IA.No.1 of 2024,

the petitioners sought for interim direction to the respondents to

appoint the petitioners as Sub-Engineers in the posts vacant as on

December 2018. Along with the application, the information

obtained under the RTI Act dated 01.07.2019 is enclosed wherein

the vacancy position in the cadre strength of Engineers for the

period from April 2018 to March 2019 is furnished. Learned senior

counsel submitted that since there are existing vacancies,

the petitioners, who are eligible, may be directed to be appointed.

20. In response, learned senior counsel for the respondents

submitted that the RTI information includes vacancies, which have

arisen subsequent to the notification dated 24.05.2018 and the

petitioners do not have any right whatsoever to seek appointment

in subsequent vacancies.

21. It has been reiterated in a catena of decisions and also

decisions cited supra that a person in the selection list does not

have vested right to be appointed to the post and that the State is

under no legal obligation to fill up vacancies. At the same time,

it has been held that the authorities have to justify the reasons to

decline to appoint a person, who is in the selection list. That unless

there is a statutory embargo direction can be given to fill up

vacancies arisen in the same recruitment notification [see

SANDEEP SINGH's case (4 supra)].

22. In the present case, the contention of the learned senior

counsel for the petitioners is that the petitioners have been unduly

deprived of appointment as respondent authorities have arbitrarily

diverted the posts by wrongly invoking Regulation 14(a)(i) of APSEB

Service Regulations Part-II.

23. It may be noted that the grievance of the petitioners in the

writ petitions is that appointment orders have not been issued to

them despite call letters issued on 19.12.2028/20.12.2018 and that

other candidates have been selected and appointments were made.

However, the selected candidates are not parties to this lis.

The petitioners have not chosen to implead the selected candidates

as respondents in this writ petition in spite of objection raised by

the respondents.

24. The Supreme Court in TRIDIP KUMAR DINGAL v. STATE

OF WEST BENGAL 9 held as under:

"41. Regarding protection granted to 66 candidates, from the record it is clear that their names were sponsored by the employment exchange and they were selected and appointed in 1998-1999. The candidates who were unable to get themselves selected and who raised a grievance and made a complaint before the Tribunal by filing applications ought to have joined them (selected candidates) as respondents in the original application, which was not done. In any case, some of them ought to have been arrayed as respondents in a "representative capacity". That was also not done. The Tribunal was, therefore, wholly right in holding that in absence of selected and appointed candidates and without affording opportunity of hearing to them, their selection could not be set aside."

In BHAGWANTI v. SUBORINDATE SERVICES SLECTION

BOARD 10, it was held as under:

"3. It is obvious from the impugned order of the High Court that in the writ petition before it only the Subordinate Services Selection Board was impleaded as a party. Neither the selected candidates nor those who were issued appointment letters were impleaded as parties before the High Court. The High Court set aside the selection and the appointments without hearing the persons concerned. It is settled proposition of law that no order to the detriment of a

(2009) 1 SCC 768

1995 Supp (2) SCC 663

person can be passed without hearing him.

We, therefore, allow the appeal and set aside the impugned order of the High Court on this short ground. The writ petition filed by the respondents before the High Court is thus dismissed. No costs."

25. In view of the above settled proposition of law, it can be

safely held that an appointment/notification cannot be challenged

unless the selected candidates are impleaded and heard. In the

absence of selected candidates, being impleaded in the present

batch of writ petitions and more so, taking into consideration that

they were appointed as early as in the year 2018/2019, this Court

is not inclined to pass any orders disturbing their selection.

26. As it is contended by the learned senior counsel for the

petitioners that there are still vacancies available, which arise out of

recruitment notification dated 24.05.2018, the writ petitions are

disposed of giving liberty to the petitioners to submit representation

to the respondent authorities giving details of the vacancies,