Balthu Pavan Kumar vs The Telangana State Power Generation ...
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Telangana High Court

Balthu Pavan Kumar vs The Telangana State Power Generation ... on 4 October, 2024

 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

     WRIT PETITION NOs.42734 & 45061 OF 2017, 18962 &
                    20048 OF 2018
COMMON ORDER :

W.P.No.42734 of 2017 is filed declaring the action of the 2nd

respondent in issuing Lr.No.CGM (Adm)/JSI/DS (Adm-I)/AS

(Adm.II)/PO-Adm/106/17, dated 04.12.2017 and the action of

the respondents in not operating the merit list downwards on the

basis of the Written Examination held on 14.11.2015 for the posts

of Assistant Engineer (Electrical) pursuant to the Notification

No.02/CGM (Adm, IS and ERP) dated 23.09.2015, as per the

judgment dated 17.08.2017 of the Hon'ble Supreme Court of India

is SLP (C) Nos.36057-36059 of 2016 and SLP (C) No.36194 of 2016,

against the balance 55 Notified posts, for which no appointment

orders were issued, as arbitrary illegal and violative of Articles

14, 16 and 21 of the Constitution of India and consequently, direct

the respondents for appointing the petitioners as Assistant

Engineers (Electrical) against the vacant notified posts based on

the existing merit list and roster points with all consequential

benefits.

LNA,J W.P. No.42734 of 2017 & batch

2. W.P.No.25061 of 2017 is filed declaring the respondents in

not operating the merit list downwards on the basis of the written

examination held on 14.11.2015 for the posts of Assistant

Engineer (Electrical), pursuant to the Notification No.02/CGM

(ADM, IS & ERP) , dated 23.09.2015, as per the judgment dated

17.08.2017 of the Hon'ble Supreme Court in SLP (C) Nos.36057-59

of 2016 and 36194 of 2016 against the balance 55 notified posts, for

which no appoint orders were issued, as arbitrary, illegal and

violative of Articles 14, 16 and 21 of the Constitution of India and

consequently direct the respondents for appointment of the

petitioner as Assistant Engineer (Electrical) against the vacant

notified posts based on his merit and BC-B roster point with all

consequential benefits.

3. W.P.No.18962 of 2018 is filed declaring the respondents in

not operating the merit list downwards on the basis of the written

examination held on 14.11.2015 for the posts of Assistant

Engineer (Electrical), pursuant to the Notification No.02/CGM

(ADM, IS & ERP) , dated 23.09.2015, as per the judgment dated

17.08.2017 of the Hon'ble Supreme Court in SLP (C) Nos.36057-59 LNA,J W.P. No.42734 of 2017 & batch

of 2016 and 36194 of 2016 against the balance 55 notified posts, for

which no appoint orders were issued, as arbitrary, illegal and

violative of Articles 14, 16 and 21 of the Constitution of India and

consequently, direct the respondents for appointing the petitioner

as Assistant Engineer (Electrical) against the vacant notified posts

based on the existing merit and roster points, with all

consequential benefits.

4. W.P.No.20048 of 2018 is filed praying to call for the records

pertaining to notification issued by the respondent-Corporation

i.e., Notification No.2/2015, dated 23.09.2015 and direct the

respondent-corporation to fill up the notified and existing 55

vacancies in the category of Assistant Engineer (Electrical) by

considering the claim of the petitioner and similarly placed

persons upon his merit vis-a-vis the availability of vacancies by

operating the object and spirit of the judgment of Hon'ble

Supreme Court dated 17.08.2017 in SLP Nos.36057-36059/2016

and appoint the petitioner as such with all consequential benefits

on par with his batch mates, by holding the action of respondent-

corporation in not doing so and issuing the proceedings dated LNA,J W.P. No.42734 of 2017 & batch

04.12.2017 with distortion of facts and suppression of facts and

denying the claim of the petitioner without basis, material and

requirement, more so, after operating the 2nd list in the teeth of

judgment of the Hon'ble Apex Court, solely based on some

further events, without taking the factual position in proper

perspective as bad, illegal, arbitrary, discriminatory and

unconstitutional.

5. Since the issue involved in all the writ petitions is one and

the same, all writ petitions were heard together and disposed of

by this common order.

6. For convenience, the facts in Writ Petition No.42734 of 2017

are referred hereunder.

7. Brief facts that lead to filing of the W.P.No.42734 of 2017

are that 1st respondent issued Notification No.02/CGM (Adm, IS

& ERP)/2015, dated 23.09.2015 for filling up of 856 posts of

Assistant Engineer (Electrical, Mechanical, Electronics and Civil).

Among the 856 posts, in Electrical Branch 413 General and six

Limited Recruitment vacancies in Electrical branch were notified LNA,J W.P. No.42734 of 2017 & batch

among other branches. In response to the said notification, the

petitioners participated in the selection process and appeared for

written examination conducted on 14.11.2015 and got secured 68,

69, 68, 69, 71, 78, 73, 77, 71, 77, 69, 77, 73, 77 respectively.

8. It is averred that TS TRANSCO, TS SPDCL and TS NPDCL

have also issued notifications dated 24.09.2015, 27.09.2015 and

24.09.2015 for filling up of 206, 201 and 164 vacancies of Assistant

Engineers, respectively, in their companies. In response to the

above posts, most of the candidates submitted their applications

to the above notifications and meritorious candidates got

sufficient marks for selection in all the companies and they have

selected the companies of their choices, and submitted their

original certificates for verification. In respect of the Electrical

Branch, 128 vacancies of A.E.(Electrical) were left unfilled,

whereas in other companies, 60, 73, and 105 vacancies were left

unfilled as the selected candidates have not turned up for

verification of their original certificates in view of their

appointment in other companies.

LNA,J W.P. No.42734 of 2017 & batch

9. In those circumstances, the TS TRANSCO Ltd., DISCOMS

of TS, sought permission from the government for operating the

merit list downwards on one time basis and to continue the

selection process for the leftover notified posts and the same was

permitted by the Government vide its letter dated 01.06.2016.

10. Challenging the Government letter dated 01.06.2016, some

candidates filed W.P.Nos.17686, 21729 of 2016 and the same were

allowed by judgment dated 11.07.2016. Aggrieved by the same,,

W.A.Nos.748, 750, 770 of 2016 were filed and the same were

dismissed by judgment dated 29.08.2016 upholding the order of

the single Judge. Aggrieved by the orders dated 29.08.2016, the

applicants filed SLP (Civil) Nos.36057-36059 of 2016 and 36194 of

2016 and the Hon'ble Supreme Court disposed of the said SLPs,

by judgment dated 17.08.2017 setting aside the judgments of the

Division Bench and learned single Judge of High Court and

consequently, dismissed the writ petitions by holding that the

Corporations may fill up the posts as directed in letter dated

01.06.2016 and in the light of the interpretation of Clauses 8 & 9 of

G.O.Ms.No.81, given by them.

LNA,J W.P. No.42734 of 2017 & batch

11. Consequent to the orders of the Hon'ble Supreme Court

dated 17.08.2017, the Board of TS GENCO Ltd., decided to fill all

the 166 vacancies of Assistant Engineers, pertaining to different

branches and accordingly, issued selection list of 128 candidates

in respect of Electrical Engineering Branch, 7 candidates in

Mechanical Branch, 6 candidates in Electronics branch and 22

candidates in Civil Branch of Engineering and called for their

certificate verification vide notice dated 05.10.2017. Accordingly,

83 candidates appeared for certificate verification in Electrical

branch and appointment orders were issued to 73 candidates vide

notice dated 13.11.2017 and 55 posts remained unfilled.

Aggrieved thereby, the writ petitioners made representation

dated 27.11.2017 requesting to operate the merit list downwards

and to issue the next selection list. However, the 2nd respondent

issued impugned rejection letter dated 04.12.2017.

12. Aggrieved by rejection letter dated 04.12.2017, the

petitioners filed the present writ petition.

LNA,J W.P. No.42734 of 2017 & batch

13. On 19.07.2024, this Court passed orders that any

appointment made pursuant to the notificationNo.1 of 2023 dated

04.10.2023 shall be subject to the result of the writ petitions.

14. Counter is filed on behalf of the respondents, inter alia,

contending that TS GENCO issued notification dated 23.09.2015

for filling up 865 posts including the posts sanctioned for new

projects i.e., KTPS VII Stage - 55; Bhadradri Thermal Power

Station (BTPS) - 116; Yadadri TPS A - 116, Yadadri TPS B - 166;

and O&M Contract, Jaipur (SSCL) - 280 for completion of BTPS &

KTPS VII Projects and commencement of construction activities

UTPS A within 2 years. Written Examination was conducted on

14.11.2015 and the candidates were selected in 1:1 ratio against

856 notified posts based on their merit in written examination

and they were accordingly called for original certificate

verification; that out of 856 candidates, 690 candidates of various

streams reported for verification and accordingly, the

appointment orders were issued to 690 selected candidates.

15. It is contended that in addition to the notification issued by

TS GENCO, other Corporations also issued separate notifications LNA,J W.P. No.42734 of 2017 & batch

for filling up of the posts of Assistant Engineers and in view of

the multiple notifications issued, several vacancies were unfilled.

Therefore, the Corporations approached the Government seeking

relaxation of G.O.Ms.No.81 dated 22.02.1997. Accordingly, the

Government issued a letter dated 01.06.2016 permitting the

Corporations to fill up the left over notified vacancies of Assistant

Engineers in their respective utility duly operating the merit list

downwards for each category by following other rules prescribed

in the notification.

16. It is contended that aggrieved by the letter dated 01.06.2016

some of the candidates filed writ petitions before this Court and

the matters are carried to the Hon'ble Supreme Court against the

TRANSCO, SPDCL, NPDCL, but not against the TS GENCO. The

Hon'ble Supreme Court has not issued any particular orders to

the Corporation to necessarily fill up the posts while interpreting

Clauses 8 & 9 of G.O.Ms.No.81, dated 22.02.1997.

17. It is contended that even though 856 posts were notified for

the upcoming new projects, the said construction projects were

delayed as the necessary clearances were not received on time LNA,J W.P. No.42734 of 2017 & batch

from the concerned competent authorities; that MW Jaipur Plaint

of M/s. SCCL Project did not materialize as the same was

awarded to another company. Anticipating the said project,

recruitment of 856 notified posts including 280 posts for O&M of

SSCL Project, but said project was handed over to some other

company. Subsequently, 166 posts fell vacant due to the non-

attending of selected candidates for certificate verification was

sought to be filled vide Notice dated 05.10.2017.

18. It is contended that as per the condition laid down in the

notification, TS GENCO does not have to fill up the notified

vacancies, and the said non-filling up of the vacant posts was

also due to the non-materialization of O&M Contract of SCCL

and due to the delay in construction work and as such there is no

necessity for Asst. Engineers at present. The writ petitioners have

no right to seek appointment for the post of Asst. Engineer

(Electrical) pursuant to the notification issued by the corporation.

19. Heard Sri D.Prakash Reddy, learned senior counsel

appearing for Sri Chandraiah Sunkara, learned counsel for

petitioners in W.P.Nos.42734 of 2017 and 18962 of 2018; Sri LNA,J W.P. No.42734 of 2017 & batch

V.Brahmaiah Chowdary, learned counsel for the petitioner in

W.P.No.18962 of 2018; Sri J.Sudheer, learned counsel for

petitioners in W.P.No.20048 of 2018, Ms. Uma Devi, learned

standing counsel for TS GENCO appearing for respondents in all

writ petitions.

20. Learned senior counsel Sri D.Prakash Reddy appearing for

petitioners in W.PNos.42734 of 2017 and 18962 of 2018 had

contended that the Hon'ble Apex Court in SLP (C) Nos.36057-59

of 2016 and 36194 of 2016 has left it open to the Corporations to

fill the unfilled vacancies by operating the merit list downwards

at their discretion. Though, the respondent-corporation is not a

party before the Hon'ble Apex Court, the TS GENCO Ltd., in its

Board Meeting held on 06.09.2017 accorded approval to follow

the Supreme Court judgment and to fill up of 166 vacancies in all

branches.

21. Learned senior counsel for petitioners had submitted that

as per the directions of the Hon'ble Supreme Court in SLP (C)

Nos.36057-36059 of 2016 and 36194 of 2016, the respondents

ought to have appointed the writ petitioners by operating the LNA,J W.P. No.42734 of 2017 & batch

merit list downwards. He submitted that TS GENCO having

followed 01.06.2016 clarification, could have implemented it for

left over vacancies till the merit list is exhausted; that when the

other three Discoms have followed the clarification by

undertaking exercise multiple times, the TS GENCO ought to

have undertaken the same exercise instead of passing resolution

dated 09.11.2017 not to fill the balance vacancies.

22. Learned senior counsel further contended that instead of

filling up all the vacancies by drawing down the merit list, the

respondent-corporation passed resolution on 09.11.2017 not to

undertake further exercise by drawing down the merit list to fill

up the unfilled vacancies on the ground that respondent-

corporation has surplus employees and there is no further

requirement of filling up the balance vacancies.

23. Learned senior counsel further contended that respondent-

corporation has come up with fresh notification on 04.10.2023,

whereby the respondent-corporation sought to fill up 187

vacancies in Electrical Department apart from other Departments.

Out of 187 vacancies, 42 vacancies are carried forward, which LNA,J W.P. No.42734 of 2017 & batch

were unfilled in the earlier notification dated 23.09.2015.

Therefore, in the light of notification dated 04.10.2023, the

resolution passed by the respondent-corporation on 09.11.2017

that there is no requirement to fill up the unfilled vacancies and

that surplus employees are available, is factually incorrect and

therefore, unsustainable.

24. Learned senior counsel further contended that the grounds,

on which the respondent-corporation decided not to fill the

unfilled vacancies, appears to be invented and incorrect in the

light of issuance of fresh notification dated 04.10.2023, wherein

old unfilled 42 vacancies are carried forward in the latest

notification. It is further contended that the action of the

respondent-corporation in not operating the merit list

downwards is arbitrary and the reasons on which the corporation

decided not to operate the merit list are factually incorrect. The

petitioners are next meritorious candidates and had the

respondent-corporation operated the merit list downwards

basing on the written test held on 14.11.2015, petitioners would

have been selected.

LNA,J W.P. No.42734 of 2017 & batch

25. Learned counsel Sri J.Sudheer for petitioners in

W.P.No.42734 of 2017 adopted the arguments of the learned

senior counsel Sri D.Prakash Reddy and further contended that

the respondent-corporation notified 413 vacancies vide

notification dated 23.09.2015. However, only 277 candidates were

filled up as against 413 posts notified in the notification. Pursuant

to the orders passed by the Hon'ble Apex Court in SLP (C)

Nos.36057-59 of 2016 and 36194 of 2016, the other Corporations

have filled up all the unfilled vacancies by drawing down merit

lists. However, only the respondent-corporation herein has not

filled up all the vacancies notified in the notification and

drawdown the merit list only once as against 3 to 4 times

exercised by the other Corporations and, therefore, the

respondent-corporation ought to have undertaken such exercise

till all the posts are filled up. It is further contended by the

learned counsel for petitioners that respondent-corporation had

taken a stand that there is no requirement to fill up the balance

unfilled vacancies. However, the corporation has recently issued

notification to fill up (339) new posts vide Notification LNA,J W.P. No.42734 of 2017 & batch

No.01/CGM(Adm)/2023, dated 04.10.2023. Out of which, 42

vacancies of Assistant Engineers in Electrical branch were carried

forward, which were unfilled in the earlier notification dated

23.09.2015. Therefore, the contentions that Corporation has excess

staff and there is no requirement to fill up the unfilled vacancies,

is untenable.

26. Learned counsel for petitioners further submitted that the

contention of respondent-corporation that orders, dated

17.08.2017 passed by the Hon'ble Apex Court in SLP (C)

Nos.36057-59 of 2016 and 36194 of 2016 are not binding on the

respondent-corporation, is also untenable since the respondent-

corporation had taken a decision on 06.09.2017 to undertake

exercise to fill up the unfilled vacancies by drawing down the

merit list once. Therefore, the respondent-corporation cannot now

say that the judgment of the Hon'ble Apex court is not binding on

them since they are not party to the said SLPs. Learned counsel

finally contended that the respondent-corporation ought to have

filled up all the vacancies since the unfilled vacancies are now

notified in the recent notification dated 04.10.2023, therefore, LNA,J W.P. No.42734 of 2017 & batch

prayed this Court to allow the writ petitions and direct the

respondents to appoint the petitioners herein in the unfilled

vacancies.

27. The learned counsel for petitioners placed reliance on the

following decisions:

i) Rajeev Tiwari vs. State of Rajasthan and others 1;

ii) R.S.Mittal vs. Union of India 2;

iii) Munja Praveen vs. State of Telangana 3;

iv) Union of India vs. Uzair Imran and others 4

v) Dinesh Chandra Pandey vs. High Court of Madhya Pradesh and another 5;

vi) Manoj Manu and another vs. Union of India and others 6;

vii) The Telangana State Level Police Recruitment Board and another v. Narimetla Vamshi and others (Civil Appeal No.4735/2022);

viii) Dinesh Kumar Kashyap and others vs. South East Central Railway and others 7;

ix) Shankarsan Dash vs. Union of India 8

28. Per contra, the learned standing counsel for respondents

had submitted that the petitioners, who applied to the posts in

2008 SCC Online Raj 165

1995 Supp (2) SCC 230

(2017) 14 SCC 797

2023 SCC Online SC 1308

(2010) 11 SCC 500

(2013) 12 SCC 171

(2019) 12 SCC 798

(1991) 3 SCC 47 LNA,J W.P. No.42734 of 2017 & batch

response to the above notification, were subject to recruitment

process; that mere admission to any test or inclusion of the name

of a candidate in a merit list and securing minimum qualifying

marks does not vest any right to the candidates for being called

for verification of original certificates since the vacancies are

subject to variation based on the necessity and shall be filled up

as per the rules and regulations in vogue, duly following the rule

of reservation; that as per the G.O.Ms.No.81, dated 22.02.1997,

there shall be no waiting list. Learned standing counsel further

contended that along with the TS GENCO, the four Discoms have

also issued notification on the same date for filling up of

vacancies for their respective organizations; that some of the

candidates, who responded to the notifications issued by four

Discoms and who were called for verification of certificates, did

not turn up, as it happened at TS GENCO too and under those

circumstances, the four Discoms made a representation to the

respective State Governments and the Government had issued a

clarification vide letter dated 01.06.2016.

LNA,J W.P. No.42734 of 2017 & batch

29. The learned standing counsel further contended that in the

clarification, the Government only permitted the TRANSCO, TS

SPDCL and TS NPDCL to fill up the left over notified (advertised)

vacancies of Assistant Engineers of their respective utility duly

operating the merit list downwards for each category by

following other rules prescribed in their respective notifications.

It is contended that the TS GENCO was not a party to the

representation for seeking any relaxation.

30. Learned standing counsel further contended that

TS GENCO asserted that the notification issued by them is self-

explanatory with regard to filling up of vacancies as per their

requirement and it is not mandatory to fill up all the vacancies

notified in the notification. It is contended that judgment

rendered by the Hon'ble Supreme Court, which has been relied

upon by the petitioners is not applicable to the TS GENCO as

there is no civil appeal before the Supreme Court against the

judgment rendered by this Court with regard to clarification

dated 01.06.2016 issued by the TS GENCO; that even after

assuming that the judgment of the Hon'ble Supreme Court that LNA,J W.P. No.42734 of 2017 & batch

the Corporation may fill up the posts, as clarified in the

clarification dated 01.06.2016, the discretion fully vests with the

TS GENCO with regard to filling up of the vacancies exclusively

and completely in its organization. Learned standing counsel

further contended that in view of the reasons stated above, the

respondent-corporation was fully justified in rejecting the request

of the petitioners vide letter dated 04.12.2017 and finally, prayed

to dismiss the writ petitions since they are devoid of merits.

31. In support of the contention, learned standing counsel

placed reliance on the following decisions:

i) K.Jayamohan vs. State of Kerala 9;

ii) Punjab SEB vs. Malkiat Singh 10;

iii) State of U.P. vs. Rajkumar Sharma 11;

iv) Kulvinder Pal Singh vs. State of Punjab 12 ;

v) Shankarsan Dash vs. Union of India (supra)

32. Perusal of the material placed on record would indicate

that the respondent-corporation notified 413 vacancies vide

notification dated 23.09.2015. However, only 277 candidates were

filled up as against 413 posts notified in the notification.

(1997) 5 SCC 170

(2005) 9 SCC 22

(2006) 3 SCC 330

Civil Appeal No.5035 - 5036 of 2016 LNA,J W.P. No.42734 of 2017 & batch

Consequent to the orders of the Hon'ble Supreme Court in

SLP(C) Nos.36057-59 of 2016 and 36194 of 2016, the respondent-

corporation has undertaken exercise of operating merit list

downwards once and filled majority of the unfilled vacancies, but

still about 42 vacancies remained unfilled. The respondent-

corporation did not further operate merit list downwards and fill

the balance vacancies, which is contrary to the exercise

undertaken by other three corporations, which have undertaken

exercise of operating merit list downwards multiple times.

33. It is the case of respondent-corporation that there was no

further requirement of Assistant Engineers at that point of time

since the SCCL (O&M) contract has not materialized and the

BTPS and YTPS project works got delayed due to various external

factors and in view of the same, it is decided to stop further

recruitment of Assistant Engineers by operating the merit list

downwards until commencement of the project works of new

projects were undertaken and to that effect, the respondent-

corporation passed resolution on 09.11.2017.

LNA,J W.P. No.42734 of 2017 & batch

34. It is now appropriate to discuss the judgments relied upon

by the learned counsel for petitioners.

35. In Rajeev Tiwari (supra) the Division Bench of

Rajasthan High Court held as under:

"11. From the afore quoted decisions following principles may be deducted:--

(i) Merely because the name of candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment.

(ii) The State, however, 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.

(iii) The decision not to fill up the vacancies, has to be taken bonafide and just pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution.

(iv) The State has to act fairly and the whole exercise cannot be reduced to a farce.

(v) The State cannot ignore the select panel or decline to make the appointment on its whims."

36. In R.S. Mittal (supra), the Division Bench of the Hon'ble

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 LNA,J W.P. No.42734 of 2017 & batch

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."

37. In Munja Praveen (supra), the Hon'ble Apex Court while

interpreting clauses 8 & 9 of G.O.Ms.No.81, dated 22.02.1997 held

that G.O.Ms. would come into operation only after appointment

letters were issued and, therefore, if a person, who is at number

one position, goes to one of the corporations and is given the

appointment letter, he may not go to other three Corporations for

verification of the certificate, does not mean that the first post in

all the corporations should now lie vacant.

38. In Uzair Imran (supra), the Hon'ble Apex Court held that if

a candidate is not rejected at the threshold and the candidate is

allowed to participate in the selection process and ultimately his

name figures in the merit list, though such candidate has no

indefeasible right to claim appointment, he does have a limited

right of being accorded fair and non-discriminatory treatment.

Given the stages of the process that the candidate has successfully LNA,J W.P. No.42734 of 2017 & batch

crossed, he may not have a vested right of appointment, but a

reasonable expectation of being appointed having regard to his

position in the merit list could arise.

39. In Dinesh Chandra Pandey (supra), the Division Bench of

the Hon'ble Supreme Court held as under:

"15. The courts have taken a view that where the expression "shall" has been used it would not necessarily mean that it is mandatory. It will always depend upon the facts of a given case, the conjunctive reading of the relevant provisions along with other provisions of the Rules, the purpose sought to be achieved and the object behind implementation of such a provision. This Court in Sarla Goel v. Kishan Chand [(2009) 7 SCC 658] , took the view that where the word "may" shall be read as "shall" would depend upon the intention of the legislature and it is not to be taken that once the word "may" is used, it per se would be directory. In other words, it is not merely the use of a particular expression that would render a provision directory or mandatory. It would have to be interpreted in the light of the settled principles, and while ensuring that intent of the Rule is not frustrated"

40. In Manoj Manu (supra), the Division Bench of the Hon'ble

Supreme Court held as under:

"9. It can be clearly inferred from the reading of the aforesaid that it is not the case where any of these persons initially joined as Section Officer and thereafter resigned/ left/promoted, etc. thereby creating the vacancies again. Had that been the situation viz. after the vacancy had been filled up, and caused again because of some subsequent event, position would have been different. In that eventuality UPSC would be right in not forwarding the names from the list as there is culmination of the process with the exhaustion of the notified vacancies and vacancies arising thereafter have to be filled up by fresh examination. However, in the instant case, LNA,J W.P. No.42734 of 2017 & batch

out of 184 persons recommended, six persons did not join at all. In these circumstances when the candidates in reserved list on the basis of examination already held, were available and DoPT had approached UPSC "within a reasonable time"

to send the names, we do not see any reason or justification on the part of UPSC not to send the names."

12. It is, thus, manifest that a person whose name is included in the select list, does not acquire any right to be appointed. The Government may decide not to fill up all the vacancies for valid reasons. Such a decision on the part of the Government not to fill up the required/advertised vacancies should not be arbitrary or unreasonable but must be based on sound, rational and conscious application of mind. Once it is found that the decision of the Government is based on some valid reason, the Court would not issue any mandamus to the Government to fill up the vacancies."

41. In Narimetla Vamshi (supra)", the Hon'ble Supreme Court

held as under:

"The manner of interpreting the rule in question has already been set out in Munja Praveen case (Supra). If a candidate has not gone through the process of recruitment, he has not done what was required to be done by him as set out herein above, it cannot be construed as a vacancy arising which has to be carried forward to the next recruitment process. As to the consequences of the large number of vacancies that have remained on these different accounts, the details of which have been set out herein above, again lend support to this conclusion that a large part of the process is not frustrated by not filling up of the vacancies. Public employment is an important source of employability for young people in the country where we are facing problems of adequacy of jobs; An interpretation of the kind sought to be propounded by the appellants would go against the very ethos of providing public employment to persons eligible and meritorious, by construction of a rule in a manner leaving a large number of vacancies unfilled. This would not be an appropriate interpretation."

42. In Dinesh Kumar Kashyap (supra), the Hon'ble Supreme

Court held as under:

LNA,J W.P. No.42734 of 2017 & batch

"6. ...Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right.

However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State..."

43. In Shankarsan Dash (supra), the Constitution Bench

of the Hon'ble 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.

In paragraph-8, reliance was place on State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220, wherein it was held that "In this background it was observed that it is, of course, open to the government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of LNA,J W.P. No.42734 of 2017 & batch

vacancies and the availability of qualified candidates; and, there must be a conscious application of mind by the government and the High Court before the number of persons selected for appointment is restricted."

44. It is now appropriate to discuss the judgments relied upon

by the learned standing counsel for respondents.

45. In K.Jayamohan (supra), the Division Bench of the Hon'ble

Supreme Court held as under:

"5. It is settled legal position that merely because a candidate is selected and kept in the waiting list, he does not acquire any absolute right to appointment. It is open to the Government to make the appointment or not. Even if there is any vacancy, it is not incumbent upon the Government to fill up the same. But the appointing authority must give reasonable explanation for non-appointment. Equally, the Public Service Commission/recruitment agency shall prepare a waiting list only to the extent of anticipated vacancies. In view of the above settled legal position, no error is found in the judgment of the High Court warranting interference."

46. In Punjab SEB (supra), it was held that "It is settled law that

mere inclusion of name of a candidate in the select list does not confer on

such candidate any vested right to get an order of appointment. This

position is made clear in para 7 of the Constitution Bench judgment of

this Court in Shankarsan Dash v. Union of India (1991) 3 SCC 47.

LNA,J W.P. No.42734 of 2017 & batch

47. In Rajkumar Sharma (supra), the Hon'ble Supreme Court

at paragraph-14 held that "selectees cannot claim the appointment as

a matter of right. Mere inclusion of candidate's name in the list does not

confer any right to be selected, even if some of the vacancies remained

unfilled and the candidates concerned cannot claim that they have been

given a hostile discrimination."

48. It was further held in paragraph-15 that "Even if in some

cases appointments have been made by mistake or wrongly that does not

confer any right on another person. Article 14 of the Constitution does

not envisage negative equality, and if the State committed the mistake it

cannot be forced to perpetuate the same mistake."

49. In Kulvinder Pal Singh (supra), the Division Bench at

paragraph-17 held that "Merely because some persons have been

granted benefit illegally or by mistake, it does not confer right upon the

appellants to claim equality."

50. From the catena of judgments referred to and relied upon

by the learned counsel for petitioners as well as learned standing

counsel for respondent no.1, it is clear that candidate, who

participated in the selection process, cannot claim an absolute LNA,J W.P. No.42734 of 2017 & batch

right to appointment as vested right even if some of the vacancies

remained unfilled, however, reasonable expectations of being

appointed having regard to his position in the merit list would

arise. At the same time, the Government cannot ignore select

panel or decline to make appointments on its whims and there

shall be a justified reason for non-filling of unfilled vacancies.

Further, the Government cannot act in arbitrary manner and the

decision not to fill up the unfilled vacancies has to be taken

bona fidely for appropriate reasons. It is pertinent to refer to the

decision of Munja Praveen (supra), wherein the Hon'ble Apex

Court observed that if a candidate is selected in four posts and

since he can join only one post, that resultant three vacancies shall

not be kept vacant.

51. In the present cases, the respondent-corporation in its

board meeting held on 06.09.2017 has taken a decision to fill the

unfilled vacancies by operating merit list downwards and

accordingly, the Corporation had undertaken exercise and

appointed the candidates once, however, still about 42 vacancies

left over unfilled. However, instead of taking further steps to fill LNA,J W.P. No.42734 of 2017 & batch

up the unfilled vacancies as followed by the other three

Corporations i.e., TS TRANSCO, TS SPDCL and TS NPDCL, the

respondent-corporation passed resolution on 09.11.2017 not to

undertake further exercise of drawing down the merit list to fill

up the unfilled balance vacancies on the ground that there was no

further requirement of Assistant Engineers since the SCCL

(O&M) contract has not materialized and the BTPS and YTPS

project works got delayed due to various external factors and

further, there were surplus employees available in the

Corporation.

52. Challenging the decision of the respondent-corporation not

filling the balance vacancies, the petitioners herein filed the

present writ petitions promptly and the same are pending

adjudication since, 2017.

53. It is pertinent to note that Corporation has issued fresh

notification on 04.10.2023 to fill up the posts of 187 vacancies in

Electrical Department. Out of which, 42 vacancies, which were

unfilled in the earlier notification dated 23.09.2015, are carried

forward and included in the fresh notification LNA,J W.P. No.42734 of 2017 & batch

54. In the light of inclusion of 42 unfilled vacancies in the fresh

notification, the contention of the respondent-corporation that

there was no requirement to fill up the unfilled vacancies and in

fact, there were surplus employees, which lead the Corporation

to pass resolution dated 09.11.2017 not to fill up the balance

vacancies by operating the merit list downwards, is not justified

and consequently letter dated 04.12.2017 rejecting the

representations of the petitioners is unsustainable and

accordingly, the same is set aside.

55. Since the unfilled vacancies, which were notified in 2015

notification, are now notified in the latest notification dated

04.10.2023, it is clear that unfilled posts are very much required

and had the respondent-corporation undertaken exercise of

operating merit list downwards, the petitioners would have been

appointed in the year 2017 itself.

56. In view of the above facts, circumstances and legal

position, in considered opinion of this Court, the candidature of

the petitioners deserve to be considered for appointment to the LNA,J W.P. No.42734 of 2017 & batch

post of Assistant Engineers (Electrical) in the unfilled 42

vacancies arising out of the notification dated 23.09.2015.

57. Accordingly, Writ Petitions are allowed and the

respondent-Corporation is directed to consider the candidature of

the petitioners for appointment to the post of Assistant Engineers

(Electrical) against 42 unfilled notified posts based on their merit

and roster points and pass appropriate orders within a period of

six weeks from the date of receipt of copy of this order. There

shall be no order as to costs.

Pending miscellaneous applications if any shall stand

closed.

___________________________________ LAXMI NARAYANA ALISHETTY, J Date: 04.10.2024 kkm