HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE K.G. SHANKAR WRIT PETITION NO. 6886 OF 2011 Between: Union of India represented by the Secretary to the Government and three others ………….Petitioners AND D. Ram Mohan Rao, S/o Late D. Krishna Rao aged about 45 years Occ UDC, Central Ground Water Board, Hyderabad and one another ………….Respondents ORDER : (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed seeking to issue an order particularly one in the nature of Writ of Certiorari calling for the records relating to and connected with the order dated 8.10.2010 passed in O.A.No. 1034 of 2009 by the Andhra Pradesh Administrative Tribunal, Hyderabad and quash the same as illegal. Brief facts of the case are that the first respondent-applicant is holding the post of Upper Divisional Clerk (UDC) and his next promotional post is Assistant in the pay scale of Rs. 5,000 –8000. It is stated that the recruitment of the said post provide two sources of recruitment viz., (1) 90% by promotion failing which by deputation and (ii) 10% by promotion on the basis of limited departmental competitive examination and the petitioners herein have issued a notification dated 19.1.2009 for filling up the post of Assistant against 10% quota. The relevant portion of the notification dated 19.1.2009 reads as under: “ It has been decided to fill up 1 (one) post of Assistant (number of vacancies may likely to be increased) through Departmental Competitive Examination from the eligible UDCs. A Limited Departmental Competitive Examination is to be held at CGWB, SR, Hyderabad as per the following programme: S.No. N a m e of the paper Date of paper Time Maximum Marks 1. Essay & Precise Writing 22.4.2009 14.30 to 16.30 100 2. N o ti n g Drafting and Office Procedure 23.4.2009 10.00 to 12.00 Hrs 100 3. General Knowledge of Financial Rules and Service Matters 23.04.2009 14.30 to 16.30 Hrs 100 All the Heads of Offices are requested to bring this to the notice of all the eligible UDCs working under their control, who have completed/will complete their five years regular services as UDC in CGWB as on 22.4.2009 and send their applications on the enclosed proforma duly countersigned to this office so as to reach this office latest by 16.2.2009. Also, a certificate may be issued that no vigilance case is either pending or contemplated against those UDCs willing to appear in this Examination. Further, it is also intimated that the candidates securing 33% marks in each subject and 40% in aggregate will only be declared qualified in the said Examination. The examination will be conducted bilingually.” It is also stated that as per the said notification, only one post of Assistant was available and it was mentioned that the number of vacancies may likely to be increased. The applicant-first respondent applied for the said post and participated in the examination held on 10th and 11th July 2009 and the result of the examination was declared on 1.10.2009. It is stated that one notified vacancy was filled up by the candidate, who secured the first position in the examination with effect from 5.10.2009 and the second vacancy has to fill up, therefore, the first respondent-applicant made a representation on 6.10.2009 to the petitioners herein to consider his candidature, but the same was rejected vide letter dated 2.12.2009. The same is extracted hereunder: “ I am to invite a reference to your letter No. 2- 7/DRMR/93/Admn.II/1650, dated 16.11.2009 forwarding therewith representation of Sh.D. Ram Mohan Rao, UDC, regarding Limited Departmental Competitive Examination held for the post of Assistant in July 2009. In this context, it is stated that the Limited Departmental Competitive Examination for the post of Assistant was conducted for the recruitment year 2008-2009 and as such only those vacancies that occurred on or before 31.3.2009 could only be filled. The second vacancy occurred on 16.6.2009 could not be included in this Limited Departmental Competitive Examination, as this vacancy pertains to the recruitment year 2009-2010. Therefore, it is not possible to accede to the request of Sri D. Ram Mohan Rao, UDC for filling up 2nd vacancy of Assistant under Limited Departmental Competitive Examination. The officials concerned may be informed accordingly. This has the approval of the competent authority.” Aggrieved by the same, the first respondent- applicant filed the O.A and the same was allowed observing as under: “That being the position, in view of the above instructions and in view of the fact that second vacancy arose on 16.6.2009 and the result was declared on 6.10.2009, and the applicant, who has secured the second highest marks, is entitled to be promoted against the said vacancy on the basis of selection in pursuance of the notification dated 9.1.2009. The respondents are not justified in rejecting the case of applicant for the reasons mentioned in the impugned letter dated 2.12.2009. The same is accordingly liable to be quashed and set aside. Accordingly, the impugned letter dated 2.12.2009 is hereby quashed and set aside. The respondents are directed to fill up the vacancy that had arisen on 16.6.2009 by giving promotion to the applicant with effect from 6.10.2009. However, the applicant will get the actual benefit with effect from the date of his joining the post. The respondents shall issue appropriate order within a period of one month from the date of receipt of a copy of this order.” Aggrieved by the same, the Union of India represented by the Secretary to the Government, Ministry of Water Resources, filed the present Writ Petition. The learned counsel appearing for the petitioners vehemently contended that according to Office Memo (OM) dated 8.2.1982 there would be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies of particular year, either by the method of direct recruitment or through a departmental competitive examination. He also contended that when once a person is declared successful according to the merit list of selected candidates, which is based on the declared number of vacancies, the appointing authority has the responsibility to appoint him even if the number of vacancies undergoes a change, his name has been included in the list of candidates, therefore, the OM is only for declared vacancies and not for future vacancies. Therefore, the Tribunal committed an error in allowing the O.A. On the other hand, the learned counsel appearing for the first respondent-applicant submits that there are no grounds to interfere with the order passed by the Tribunal and the Writ Petition is liable to be dismissed. Heard the learned counsel appearing for both sides and also perused the material made available on record. As seen from the record, as per the notification- dated 19.1.2009 the first respondent-applicant fulfilled the necessary qualifications and applied for the post of Assistant and he secured the second highest marks. As the second vacancy was not filled up by the petitioners herein, the first respondent-applicant made a representation dated 6.10.2009 to the petitioners herein to consider his candidature and to promote him against the second vacancy. It is stated that as the representation submitted by the first respondent-applicant was rejected, he filed O.A. The applicant-first respondent qualified in the departmental examination and ranked second position in the merit list. The instructions dated 8.2.1982 would show that the list of selected candidates in the Limited Departmental Examination has to be based on the number of vacancies. It is mentioned in the instructions that once a person is declared successful according to the merit list of the selected candidates, which is based on the declared number of vacancies, the appointing authority has the responsibility to appoint him even if the number of vacancies undergoes a change after his name has been included in the list of selected candidates. Therefore, in view of the fact that the second vacancy arose on 16.2.2009 and the results were declared on 6.10.2009, and the first respondent- applicant who was secured the second highest marks is entitled to be promoted against the said vacancy in pursuance of the notification dated 19.1.2009. In view of the above, the Tribunal is justified in quashing the order dated 2.12.2009 directing the petitioners herein to fill up the vacancy that had arisen on 16.6.2009 by giving promotion to the first respondent-applicant with effect from 6.10.2009. The Tribunal also directed that the applicant will get the actual benefit with effect from the date of his joining the post. Therefore, we see no reasons to interfere with the order passed by the Tribunal and the Writ Petition is liable to be dismissed. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. ________________________ GHULAM MOHAMMED, J _____________________ K.G. SHANKAR, J DATE: 29.03.2011 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies.