THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR W.P. No.9187 of 1999 ORDER: (Per the Hon’ble Sri Justice Ghulam Mohammed) Questioning the Order dated 30-12-1998 passed in O.A. No.1062 of 1997 by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, ‘Tribunal’), this Writ Petition has been filed. 2. Facts, in brief, are as follows: The post of Lab Technician in P & T Dispensary, Rajahmundry, fell vacant since 21-05-1995 on the demise of incumbent, K.Sudarshan Rao, and due to which a requisition was sent to the Employment Exchanges on 28-07-1995 by the writ petitioner postal authorities. In response to that requisition, one candidate was sponsored by the Employment Exchange, Kakinada, instead of sponsoring five names for selection of a suitable candidate. Hence, the Employment Exchange, Kakinada, was again addressed letter dated 17-08-1995 to sponsor at least five candidates and the Employment Exchange, Kakinada, in turn asked the other Employment Exchanges to send the list of candidates to the Assistant Director, Post Master General, Visakhapatnam. Thus, Employment Exchange, Vizianagarm, sponsored seven candidates, while the Employment Exchange, Visakhapatnam sponsored 20 candidates. Thereafter, as no action was taken to nominate members of Interview Board and as by then three months life period in respect of list of candidates sponsored by Employment Exchanges was ceased, Employment Exchanges were again addressed on 08-01-1996 to send separate lists. As the Employment Exchanges called for fresh notification, another notification was sent to Employment Exchanges on 25-03-1996. On receipt of list of candidates sponsored by Employment Exchanges, DPC was held on 22-05-1996 and the DPC issued the minutes stating that none of the candidates found fit for appointment and suggested to call again, either from Employment Exchange or from open notification. In those circumstances, the Employment Exchanges were again addressed on 03-06-1996. It appears the Employment Exchanges, Kakinada, Eluru and Vijayawada reported that suitable candidates were not available and as such a decision was taken on 29- 11-1996 to make casual appointment, pending regular selection. Accordingly, the third petitioner-Chief Medical Officer (I/c.) P & T Dispensary made contingent arrangement by engaging the first respondent as Lab Technician for five days week with effect from 10-02- 1997. In the meanwhile, the Employment Exchange, Kakinada, was addressed again on 27-12-1996 to send a list of candidates furnishing the requirements for the post. The Employment Exchange sponsored a list of candidates and Interview was held on 22-04-1997 to select a suitable candidate. The Interview Board appointed the second respondent as Lab Technician in P & T Dispensary, Rajahmundry vide Lr.No.ST/123/Genl./Rectt. dated 20-06-1997 and pursuant to the said letter of appointment, the second respondent joined duty on 01-08-1997 and he was directed to attend K.G.H. at Visakhapatnam to get familiarization with lab work. Aggrieved by the same, the first respondent filed O.A. No.1062 of 1997 under Section 19 of Administrative Tribunal Act, 1985, before the Tribunal. The Tribunal vide order dated 30-12-1998 directed that fresh interviews be held and that first and second respondents and other candidates sponsored by the Employment Exchange for second selection should be interviewed. While answering the O.A., the Tribunal further ordered that till regular candidate is appointed, the second respondent should be continued on casual basis as Lab Technician in P & T Dispensary, Rajahmundry. As already stated, challenging the said order, the present writ petition is filed on various grounds. 3. The learned Standing Counsel appearing for the petitioners vehemently contended that the Tribunal has committed a serious error in setting aside the selection made by the authorities, which was based on the assessment by D.P.C. and considering the merit. The Tribunal ought not to have set aside the selection and directed the second respondent to continue on casual basis. 4. Sri Vemuri Venkateswara Rao, the learned counsel for the first respondent, contended that the first respondent applied for the post of Lab Technician pursuant to the notification dated 22-05-1996 and since she was not selected on the ground that she was over-aged, he contended that as the first respondent belong to S.C. community, the authorities ought to have granted age relaxation, nonetheless she has been continued on a casual basis as a casual labour. In support of his contention, learned counsel drawn our attention to a decision in S.VINOD KUMAR v. UNION OF INDIA[1]. He further contended that in pursuant to the second notification, even though no suitable candidates were found, second selection was took place on 22- 04-1997, whereby the petitioner authorities erroneously selected the second respondent and pursuant to which, final order was issued and he joined in service. 5. The Apex Court in S.VINOD KUMAR v. UNION OF INDIA[2] held as follows: “There is no doubt that the meaning of the various expressions used in Article 16, viz., ‘matters relating to employment or appointment to any office’, ‘any employment or office’ and ‘appointment or posts’ cannot be whittled down to mean only initial recruitment and hence the normal rule of the service jurisprudence of the loss of the birth marks cannot be applied to the appointments made under the article. However, as pointed out earlier, the exclusive quota is not the only form of reservation and where the resort to it such as in the promotions, results in the inefficiency of the administration, it is illegal. But that is not the end of the road nor is a backward class employee helpless on account of its absence. Once he gets an equal opportunity to show his talent by coming into the mainstream, all he needs is the facility to achieve equal results. The facility can be and must be given to him in the form of concessions, exemptions etc., such as relaxation of age, extra attempts for passing the examinations, extra training period etc., along with the machinery for impartial assessment as stated above. Such facilities when given are also a part of the reservation programme and do not fall foul of the requirement of the efficiency of the administration. Such facilities, however, are imperative if not only the equality of opportunity but also the equality of results is to be achieved which is the true meaning of the right to equality.” 6. The facts, which are not in dispute, are that in the DPC held on 22- 05-1996, the first respondent was not selected, as she was over-aged and could not produce required educational certificate to become eligible for Government post. However, due to contingency in the Department, she was engaged as Lab Technician for five days week with effect from 10-02-1997. 7. We are unable to appreciate the contention of the learned counsel for the first respondent to the effect that the facility can be and must be given to the first respondent in the form of concession, exemption etc., such as relaxation of age, extra attempts for passing the examinations, extra training period along with the machinery for impartial assessment and such facilities when given are also a part of the reservation programme and do not fall foul of the requirement of the efficiency of the administration, for the simple reason that when once the vacancy is earmarked in the open competition, reserved category candidate can also compete for that examination on par with the O.C. candidate, but the first respondent cannot claim age relaxation as a matter of right. In that view of the matter, we are of the considered opinion that the decision relied on by the learned counsel for the first respondent is not applicable to the case on hand. 8. Further, since the second respondent has participated in the selection process and he has been selected and appointed by the authorities on merit, the Tribunal ought not to have observed that the appointment of the second respondent shall be treated as a casual appointment, because there is no illegality or irregularity in the selection process of the second respondent 9. As far as the first respondent is concerned, as she was not selected or appointed pursuant to the first notification, the authorities has not considered her candidature. Further, when the first respondent has not applied and she has not participated in the second selection, she cannot question the appointment of the second respondent and when once she has not applied and not participated in the selection, she is estopped from challenging the appointment of the second respondent. Since there is no illegality or irregularity in the selection or appointment of the second respondent and his appointment was based on the assessment by D.P.C. and that too considering the merit, we hold that the Tribunal went wrong in setting aside his appointment and observing that his appointment shall be treated as a casual appointment. 10. Having regard to the facts and circumstances of the case, we hold that the judgment rendered by the Tribunal treating the appointment of the second respondent as casual appointment, is liable to be set aside. 11. In these circumstances, the order dated 30-12-1998 passed in O.A. No.1062 of 1997 by the Tribunal directing that the appointment of the second respondent shall be treated on casual basis, is set aside, inasmuch as he was selected and appointed on merit by following due procedure of law. 12. The Writ Petition is accordingly allowed. ____________________ GHULAM MOHAMMED, J. ________________ SANJAY KUMAR, J. Date : 09-02-2009. SKMR IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE NINTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 9187 of 1999 Between: 1 The Post Master General Visakhapatnam Region, Visakhapatnam Dist 2 TheDirector of Postal Services Visakhapathnam Regional Visakhapatnam 3 The Chief Medical Officer Incharge Dept., of Post, P& T Dept., Rajahmudry, ..... PETITIONERS AND 1 V.S.M.Latha W/o K.Srihari Rao P & T Dispensary, Rajahmundry 2 G.Suresh son of Satyanarayanna No.40-6-2,Mangalavarapupeta, Rajahmundry , East Godavari Dist 3 The Registrar Central Administrative Tribunal, Hyderabad .....RESPONDENTS 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 issue a writ order or direction more particularly one in the nature of Writ of Certiorari, calling for the records pertaining to the order of the Hon'ble Central Administrative Tribunal in OA.No.1062/97 and quash the same as illegal and arbitrary and pass Counsel for the Petitioner:MR.M.RATNA REDDY Counsel for the Respondent No.: MR.VEMURIVENKATESWARA RAO The Court made the following : [1] 1996 (6) SLR 466 [2] 1996 (6) SLR 466