Telangana High Court
K.Srinivasa Rao vs The State Of Telangana, on 5 March, 2024
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.14056 of 2023
ORDER:
This Writ Petition is filed seeking to declare the Order
bearing No.MR-184/127/84/Adm.III, dated 22.05.2023, issued by
the 2nd respondent appointing respondents 4 to 6 herein as Deputy
Executive Engineers, as illegal and arbitrary and consequently to
direct the respondents to declare the petitioners as seniors to
respondents 4 to 6 duly granting promotion to the petitioners as
Deputy Executive Engineers considering their seniority and
qualification.
2) Heard Sri A.P. Suresh Ram, learned counsel for the
petitioners, learned Government Pleader for Services-I appearing
for respondent No.1, Sri Ch. Jagannatha Rao, learned Standing
Counsel for Osmania University, appearing for respondents 2 and
3, Sri Kodumury Venkat Reddy, learned counsel appearing for
respondents 4 and 6. In spite of service of notice, none appeared
for respondent No.5.
3) The case of the petitioners is that they were appointed in the
respondent University in the years 1990, 1997 and 1984,
respectively, in different posts. After due promotions, finally, they
were promoted to the post of Assistant Executive Engineer from
different feeder categories. As they are eligible for promotion to the
post of Deputy Executive Engineers, in pursuance to the
notification No.MR-68/127/84/Adm.III, dated 27.02.2023, issued
by the second respondent, the petitioners have applied to the said
posts and claim that they are seniors in the category of Assistant
Executive Engineers and ignoring their case, the unofficial
respondents were selected to the said posts of Deputy Executive
Engineer. Hence, the present Writ Petition.
4) Pursuant to the directions of this Court, dated 26.06.2023,
the second respondent has produced the original record pertaining
to the selection under challenge.
5) Learned counsel for the petitioners has contended that the
notified vacancies for the post of Deputy Executive Engineer,
University Building Division of the second respondent shall be
filled in adherence with the Andhra Pradesh Roads and Buildings
Engineering Services Rules notified in G.O.Ms.No.103, TR & B
(S.II.), dated 22.05.1996, which mandate that the method of
appointment for the post of Deputy Executive Engineer, inter alia,
shall be done by promotion and in compliance with Rule 33 of
Telangana State and Subordinate Service Rules, 1996, which
mandates that seniority in the cadre of Assistant Executive
Engineer shall be taken into consideration while considering the
appointment to the vacancy of Deputy Executive Engineers notified
by the second respondent through Notification dated 27.02.2023.
Ignoring the same, the respondents have proceeded to recruit the
candidates, who are juniors to the petitioners herein. It is further
contended that the second respondent without notifying or
considering the seniority list has conducted an interview to the
candidates who applied for the notified posts and arbitrarily issued
appointment orders to respondents 4 to 6 herein, based on the
recommendations of the Selection Committee of the second
respondent University, for the notified vacancies through order
bearing No.MR-184/127/84/Adm.III, dated 22.05.2023. It is
further contended that the entire exercise taken up by the second
respondent for filing up of notified vacancies through recruitment
Notification dated 27.02.2023 is opaque, lacks transparency and
contrary to the mandate of G.O.Ms.No.103, dated 22.05.1996.
Hence, the impugned order appointing respondents 4 to 6 ignoring
the petitioners' seniority is liable to be set aside.
6) Per contra, the learned Standing Counsel appearing for the
respondents while admitting the fact that they have issued
notification inviting applications to fill up three vacant posts of
Deputy Executive Engineers, internally, from eligible Assistant
Executive Engineers/Assistant Engineers, who possess the
qualification and experience, in terms of G.O.Ms.No.103, dated
22.05.1996, has submitted that the post of Deputy Executive
Engineer is a gazetted post. As per Rule 5 of Telangana State and
Subordinate Service Rules, 1996, all the gazetted posts are
selection posts. Therefore, all the eligible candidates including the
petitioners were called for the interview, they were interviewed by
the Selection Committee constituted for the purpose of selections.
Based on their performance in the interview, the Selection
Committee has submitted its recommendations and based on the
said recommendations, respondents 4 to 6 were appointed to the
post of Deputy Executive Engineer, and the same was ratified by
the Executive Council in its 174th Meeting held on 08.06.2023.
Therefore, the respondents are justified in selecting the unofficial
respondents 4 to 6. Learned Standing Counsel further submits
that Rule of seniority is applicable to the candidates, who come
from different feeder categories viz., Assistant Engineers,
Draughtsman, Special Grade or Draughtsman Grade-I. But, in the
present case, all the candidates including the petitioners belong to
one feeder category only. Therefore, the Rule of seniority is not
applicable to the case on hand.
7) Learned counsel appearing for respondents 4 and 6 submits
that based on the recommendations of the Selection Committee,
the appointments were given to the unofficial respondents. Hence,
the same is strictly in accordance with the Rules and there are no
merits in the writ petition.
8) This Court has taken note of the submissions made by the
respective counsel.
9) A perusal of the record discloses that, admittedly, the
notification No.MR-68/127/84/Adm.III, dated 27.02.2023, was
issued by the second respondent for filling up three vacant posts of
Deputy Executive Engineer, University Building Division, in terms
of G.O.Ms.No.103, dated 22.05.1996. It is also an admitted fact
that the post of Deputy Executive Engineer is a Gazetted post and
therefore mode of selection to the said post is governed by Rule 5 of
the Telangana State and Subordinate Service Rules, 1996, which
reads as under:
Selection Posts: All Gazetted posts.
• Promotions/appointment by transfer in that service
shall be made on grounds of merit and ability,
seniority being considered only where merit and ability
are approximately equal by the appointing authority
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 on this behalf.
10) From the above, it is clear that merit and ability is the
criteria for selection to the Gazetted Post i.e. Deputy Executive
Engineer, in the present case.
11) A perusal of the original record produced before this Court
categorically reveals that the Selection Committee, under the
Chairmanship of Vice-Chancellor of the University, was constituted
consisting of the following members, for the purpose of interviewing
the candidates for the posts of Deputy Executive Engineer and
Assistant Engineer:
1) The Registrar, Osmania University - Member
2) The Head, Dept. of Civil Engineering, OU - Member
3) The Head, Dept. of Electrical Engg, O.U -Member
4) Sri M. Satyanarayana, Superintending - Expert
Engineer (Retired), R&B, Govt. of Telangana Member
12) Accordingly, all the candidates including the petitioners were
called for interview on 06.05.2023 and based on the performance
of the individuals in the interview, the Selection Committee has
submitted its recommendations. The record further discloses that
in the interview, assessment of the candidates was done and
marks were awarded under three categories viz., (1) Experience (20
marks), (2) Additional Qualification (10 marks) and (3) Interview
Performance (20 marks) and in total 50 marks. The record further
discloses that the unofficial respondents herein have secured more
marks than the petitioners herein. Therefore, the Selection
Committee has recommended the names of unofficial respondents
herein for appointment to the posts of Deputy Executive Engineer
and further the names of petitioners 2 and 1 were also shown in
the 'Waiting List'. Basing on the said recommendations, the
second respondent has issued the impugned order dated
22.05.2023 appointing the unofficial respondents as Deputy
Executive Engineers and the same was ratified by the Executive
Council in its 174th Meeting held on 01.06.2023. That apart, as
per Rule 5 (a) of the Rules, the seniority will be considered only
where merit and ability are approximately equal, but in the present
case, since the unofficial respondents have secured more marks
than the petitioners herein, they were selected to the post of
Deputy Executive Engineer.
13) Though this Court finds that there is a force in the
contention of the petitioners' counsel that the impugned
notification dated 27.02.2023 is silent with regard to selection
criteria, but the same cannot be looked into unless there being any
challenge to the said notification dated 27.02.2023.
14) That apart, it is settled law that the person having
consciously participated in the interview, cannot turn around and
challenge the selection process afterwards. In this context, it is
appropriate to refer to the judgment of the Hon'ble Supreme Court
in K.H. Siraj v. High Court of Kerala 1 wherein it was held as
under:
"73. The appellant-petitioners having participated in the
interview in this background, it is not open to the appellant-
petitioners to turn round thereafter when they failed at the
interview and contend that the provision of a minimum mark for
the interview was not proper."
The above said principle was reiterated by the Hon'ble Supreme
Court in State of Uttar Pradesh v. Karunesh Kumar 2.
15) In view of the above, this Court does not see any merit in the
writ petition and the same is liable to be dismissed.
16) Accordingly, the Writ Petition is dismissed.
Miscellaneous petitions pending, if any, shall stand closed.
No costs.
____________________
PULLA KARTHIK, J
Date :05.03.2024
sur
1 (2006) 6 SCC 395
2 2022 SCC OnLine SC 1706
