IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE ELEVENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE P.S.NARAYANA WRIT PETITION Nos: 24474 and 14124 of 2008 WRIT PETITION No: 24474 of 2008 Between: G. Krishna Reddy, S/o. G. Yella Reddy, O/o. National Institute of Nutrition, Jamai Osmania, Hyderabad - 500 007, R/o. Hyderabad. ..... PETITIONER AND 1 The Union of India, Ministry of Health & Family Welfare, Rep by its Secretary, Nirman Bhavan, New Delhi - 110 001. 2 The Director General, Indian Council of Medical Research, P.B.No. 4911, Ansari Nagar, New Delhi - 110 029 3 The Officer-in-Charge/Director, NIN & FDTRC, National Institute of Nutrition, Jamia Osmania, Hyderabad - 500 007. 4 Smt. M.J. Radha Bhai, W/o. M. Jangaiah, National Institute of Nutrition, Jamia Osmania, Hyderabad - 500 007. 5 The S.C. / S.T. Employees Welfare Association, National Institute of Nutrition, Jamia Osmania, Hyderabad - 500 007. rep by its General Secretary, Sri M. Chandrasekhara Roa, Taranaka, Hyderabad - 500 007. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an order or direction, more in the nature of Writ of Mandamus, declaring the order of the Hon'ble Central Administrative Tribunal, Hyderabad Bench, Hyderabad, made in OA No. 849 of 2004, dated 11-8-2008, as illegal, arbitrary, contrary to principles of natural justice, and unconstitutional, and consequently declare the same as void abinitio, null and void and non-est in the eye of law, and pass Counsel for the Petitioner:MR.T.SURYA KARAN REDDY Counsel for the Respondent No.: MS.K.M.J.D.SYAMA SUNDARI (SC FOR CG) WRIT PETITION NO: 14124 of 2008 Between: G. Krishna Reddy S/o. Yella Reddy O/o. National Institute of Nutrition, Jamai Osmania, Hyderabad- 500007. ..... PETITIONER AND 1 M.J. Radha Bhai W/o. M.Jangaiah, O/o. National Institute of Nutrition, Jamai Osmania, Hyderabad- 500007. 2 Union of India, Rep. by its Secretary, Ministry of Health and Family Welfare, Nirman Bhavan, New Delhi-110001. 3 The Director General, Indian Council of Medical Research, P.B.No.4911, Ansari Nagar, New Delhi-110029. 4 The Director, National Institution of Nutrition, Jamai Osmania, Hyderabad-500007. 5 Dr. B. Shiva Kumar, S/o. D. Radhakrishna Murthy National Institute of Nutrition, Jamai Osmania, Hyderabad-500007. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an order or direction more particularly in the nature of Writ of Certiorari to call for the records in O.A.No.135/2005 on the file of Central Administrative Tribunal, Hyderabad Bench, Hyderabad, and declare the impugned directions given by the Tribunal to the authorities to commence the process of selection to fill up the post of Sr. Administrative Officer on a permanent basis as contrary to law and quash the same and pass Counsel for the Petitioner:MR.T.SURYA KARAN REDDY Counsel for the Respondent No.: MR.T.P.ACHARYA The Court made the following : COMMON ORDER:(Per GHULAM MOHAMMED,J) Since common questions of fact and law arise in both these writ petitions, they are being disposed of by a common order. W.P.No.24474 of 2008 is filed by Sri G.Krishna Reddy seeking to quash the order of the Central Administrative Tribunal, Hyderabad, in O.A.No.849 of 2004 dated 11-08-2008 as illegal, arbitrary and violative of principles of natural justice. The said O.A.849 of 2004 was filed by the respondents 4 and 5 herein against the respondents 1 to 3 herein challenging the notification dated 16-06-2004 inviting applications for filling up of one post of Senior Administrative Officer in the 3rd respondent-Institute on the ground that the post of Senior Administrative Officer is a backlog post reserved for scheduled caste category and as the post based roster system is being adopted, the said post is to be notified as ‘reserved’ for scheduled caste members and not as ‘unreserved’ and it is also on the ground that the notification itself is contrary to the recruitment rules. The respondents therein who are respondents 1 to 3 herein contended that since there is only one post of Senior Administrative Officer in the 3rd respondent- Institute the rule of reservation is not applicable and that the notification is in accordance with the recruitment rules. The Tribunal by its dated 11-08-2008 directed the respondents 1 to 3 herein to conduct Departmental Promotion Committee for filling up the post of Senior Administrative Officer in the 3rd respondent-Institute on permanent basis from among the cadre of the Administrative Officers working in the 3rd respondent institute in accordance with the recruitment rules and gave three months time to complete the said process. W.P.No.14124 of 2008 is filed by Sri G.Krishna Reddy seeking to quash the order of the Central Administrative Tribunal, Hyderabad, in O.A.No.135 of 2005 dated 23-01-2008 as illegal, arbitrary and violative of principles of natural justice. The said O.A.No.135 of 2005 was filed by the 1st respondent herein against the petitioner and respondents 2 to 5 herein challenging the appointment of the petitioner in the post of Senior Administrative Officer by the 3rd respondent therein who is arrayed as 4th respondent in this writ petition. The Tribunal by the order dated 23-01-2008 directed the respondents therein to modify the appointment order of the petitioner making it clear that the appointment is only on deputation basis till the Officer from Administrative Officer is duly selected by a Departmental Promotion Committee as per the Recruitment Rules. The learned counsel for petitioner in W.P.No.24474 of 2008, vehemently contends that inasmuch as there is no adjudication with regard to the notification, the order passed by the Tribunal in O.A.No.849 of 2004 is illegal. The learned counsel for petitioner in W.P.No.14124 of 2008, contends that in O.A.No.135 of 2005 the Tribunal ought not to have directed for modification of the appointment of the petitioner to that of ‘deputation’. On the other hand, it is contended by Sri T.P.Acharya appearing on behalf of the 4th respondent that it is the settled proposition of law that recruitment has to be made in accordance with the recruitment rules and when the recruitment rules do not contemplate direct recruitment, no recruitment can be made as such, and so the recruitment of the petitioner in the post of Senior Administrative Officer in the National Institute of Nutrition cannot be sustained and so the Tribunal did not commit any error in passing the impugned orders. A perusal of the impugned order passed in O.A.No.135 of 2005 makes it clear that there are separate recruitment rules for the post of Senior Administrative Officer in ICMR Head Quarters Office/Institutes/Centres and the National Institute of Nutrition is one of the ICMR Institutes. At the outset, we feel it pertinent to extract relevant portion of the recruitment rules for the post of Senior Administrative Officer. “10. Method of recruitment whether by direct recruitment of by promotion or by deputation/transfer and percentage of the vacancies to be filled by various methods: Recruitment to this Grade shall be made by promotion on the basis of merit from amongst Administrative Officers who have rendered not less than five years of approved service in that Grade on the recommendations of the D.P.C. which shall interview the eligible candidates. Notwithstanding anything to the contrary, appointment to the posts of this Grade may be made by ICMR Hqrs./ICMR Centres by borrowing Officers for a fixed period from Central Government, State Governments, Public Sector Undertakings, Universities, recognized Scientific Institutions and other Autonomous organizations, if suitable candidates from within the ICMR are not available. For such recruitments, the job requirements of the posts shall be notified for suitable nominations, from which final selection should be made by a duly constituted Selection Committee. Officers holding posts under the ICMR shall be liable to serve anywhere in India to which they may be posted by the Controlling Authority or higher Authorities.” As per Rule 10 of the recruitment rules extracted above, it is clear that recruitment to the post of Senior Administrative Officer shall be made by promotion on the basis of merit from amongst Administrative Officers who have rendered not less than five years of approved service in that Grade on the recommendations of the Departmental Promotion Committee, which shall interview the eligible candidates. Though appointment to the post of Senior Administrative Officer can be made by ICMR Hqrs./ICMR Centers by borrowing Officers from Central Government, State Government, Public Sector Undertakings, Universities, recognized Scientific Institutions and other Autonomous Organizations, if suitable candidates from within the ICMR are not available, it is only for a fixed period. A perusal of the appointment order of the petitioner makes it clear that he was appointed on permanent basis. Since there was no clause in the appointment order of the petitioner to the effect that his appointment is only on deputation basis, till a regular Administrative Officer is duly promoted to the Grade of Senior Administrative Officer on the recommendations of the Departmental Promotion Committee after interviewing the eligible candidates, the Tribunal rightly ordered for modification of the appointment order of the petitioner to the effect that his appointment is only on deputation basis till the Officer from Administrative Grade is duly selected by a Divisional Promotion Committee as per the recruitment rules and so that order needs no interference by this Court. By the impugned order in O.A.No.849 of 2004 the Tribunal though observed that the rule of reservation is not applicable since there only one post of Senior Administrative Officer and that the petitioner was not eligible to be appointed in the post of Senior Administrative Officer, while taking note of the orders passed in O.A.No.135 of 2005 dated 23-01-2008 as mentioned above, rightly held that there was no need to cancel the appointment of the petitioner at that stage and rightly directed the respondents therein to conduct Departmental Promotion Committee for filling up the post of Senior Administrative Officer in the 3rd respondent-Institute on permanent basis from among the cadre of the Administrative Officers working in the 3rd respondent-Institute in accordance with the recruitment rules and fixed three months time to complete the process. Having regard to the facts and circumstances of the case, we do not find any illegality or infirmity in the impugned orders warranting interference by this Court. Thus, both the writ petitions are devoid of merits. Accordingly, both the writ petition are dismissed. No order as to costs. However, the time granted by the Tribunal in O.A.No.849 of 2004 is extended by four more weeks from the date of receipt of a copy of this order. __________________________ GHULAM MOHAMMED, J __________________ P.S.NARAYANA, J 11th November 2008 CVRK