IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRD DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO:11966 of 1995 Between: B.V.Rao ..... PETITIONER AND The Managing Director-Vice Chairman, APSRTC, Hyderabad and others .....RESPONDENTS Counsel for the Petitioner:MR.M.PITCHAIAH Counsel for Respondent Nos.1 to 4: MR.C.PRAKASH REDDY Counsel for Respondent No.5: MR. A.K.JAYAPRAKASH RAO The Court made the following : ORDER: This writ petition is filed for a writ of mandamus to declare the inaction of the respondents in considering the petitioner for appointment as Junior Assistant as per notification No.R4/331(6)/93-RM (NLR), dated 11.05.1993, as illegal and arbitrary. The petitioner was appointed as Conductor in Nellore-I Depot of Andhra Pradesh State Road Transport Corporation (for short ‘the Corporation’) with effect from 18.03.1991. On his application made in 1996 to the effect that since he underwent surgery to his skull, he was advised by the Doctors to attend light duties, the Executive Director, Nellore gave the petitioner posting in Zonal Staff Training College, Nellore as Junior Assistant (F) for a period of four months. Considering his request to continue him in the said post, he was continued in that post for another three months and later also. In 1993, recruitment for 21 posts of Junior Assistants was taken up. Written examination was conducted on 02.05.1993. 58 candidates appeared for written examination, out of whom, 16 were qualified. 15 posts were earmarked for direct recruitment. 15 out of 16 qualified candidates were selected and a select panel was notified vide notification, dated 11.05.1993 by fixing its validity for a period of one year. The petitioner was included at Sl.No.8 of the said panel. The validity of the said panel was extended for one more year and it has expired by 10.05.1995. On the ground that the petitioner was not appointed, he filed the present writ petition. This writ petition along with two other writ petitions were allowed on 11.07.2002 by a learned Single Judge of this Court by common order, which was questioned by the Corporation in Writ Appeal No.667 of 2002 and batch. The leading Writ Appeal, namely, W.A.No.667 of 2002 was allowed on 29.04.2003 by a Division Bench by setting aside the order of the learned Single Judge and following the same, the Writ Appeal filed in the case of the petitioner herein was also allowed on 19.06.2003 remanding the matter to the learned Single Judge for fresh disposal. This writ petition is accordingly, taken up for being disposal. When this writ petition came up for hearing on an earlier occasion, the Corporation was granted time to file additional counter-affidavit, which has accordingly, been filed. At the hearing, Sri M.Pitchaiah, learned counsel for the petitioner strenuously contended that despite existence of vacancies during operation of the panel till 10.05.1995, the petitioner has not been appointed. The learned counsel submitted that even according to an affidavit filed by the Law Officer of the Corporation in a review WAMP, 5 posts of Junior Assistants were kept vacant and, therefore, there is no reason for the Corporation not to appoint the petitioner in one of the existing vacancies. Sri C.Prakash Reddy, learned Standing Counsel for the Corporation submitted that out of the unit of 30 posts, 12 posts are to be filled up by promotion and 18 posts by direct recruitment and that 6 candidates were selected from the eligible departmental candidates for promotion, out of whom, only 3 candidates could be promoted as Junior Assistants, as the anticipated vacancies did not arise and due to reduction in the norm of ministerial staff on account of introduction of computers in the depots of the Corporation. As regards the direct recruitees, he submitted that out of the select panel, Sri P.Seenaiah, Sri T.S.Rao and Sri N.S.Vasulu, included at Sl.Nos.1 to 3, were appointed as Junior Assistants by order, dated 26.05.1993 and Sri G.Sreenivas at Sl.No.4 was appointed by subsequent order, dated 08.06.1993. He referred to the averments in the additional counter-affidavit and stated that Zonal Set up was introduced in the Corporation with effect from 25.05.1994 and the post of Junior Assistant, which was earlier a Regional Level post, was made as Zonal Level Post in the Zonal Set up; that Nellore Zone was formed with effect from 13.06.1994 with the jurisdiction of erstwhile Ongole, Podili, Nellore, Gudur, Tirupathi and Chittoor Divisions and in this reorganisational set up, Ongole Region was formed besides formation of Divisional Offices at Podili and Gudur and that in this process, 13 Junior Assistants from among the Junior Assistants of Tirupathi Region were adjusted as Nellore, Ongole and Tirupathi were in the Nellore Zone and the post of Junior Assistant has become a Zonal Level post. He explained that due to these reasons, the petitioner could not be appointed as Junior Assistant and the validity of the panel, which was extended up to 10.05.1995, had lapsed. He also referred to the averments in paragraph 6 of the additional counter-affidavit, wherein the contention of the petitioner with regard to existence of 18 Junior Assistant vacancies was adverted to. It is explained therein that due to introduction of computers in the depots, the ministerial staff have been reduced and according to the revised norms, 24 posts in Tirupathi Region and 13 posts in Nellore Region were found surplus and that with the introduction of Zonal Set up with effect from 25.05.1994, the post of Junior Assistant has become Zonal Level post and consequent on formation of Nellore Zone with effect from 13.06.1994, Junior Assistants were found surplus in Nellore Zone. It was thus, pleaded that there were no vacancies in view of availability of surplus staff in the category of Junior Assistants. It was reiterated that out of 15 candidates selected by way of direct recruitment, 4 candidates were appointed and out of 6 candidates selected for promotion, only 3 candidates were promoted. In paragraph 7 of the additional counter-affidavit, it is stated that a fresh notification was issued on 26.05.1997 for filling up the posts of Junior Assistants that have fallen vacant in Nellore Zone consisting of Tirupathi, Nellore and Ongole Regions by way of direct recruitment as well as promotion and that the petitioner applied for the post of Junior Assistant (direct recruitment) in pursuance of the said notification, but was absent for the written examination conducted on 28.09.1997. The law is well settled that a selected candidate does not have indefeasible right for appointment (See Shankarsan Dash v. Union of India[1]). In Subha B. Nair and others v. State of Kerala[2], the Supreme Court, which reviewed the entire case law, while reiterating this settled principle of law, held that bona fide decision of the employer to leave certain vacancies unfilled could not be assailed by the selected candidates. From the facts noted hereinabove, out of 15 candidates selected for direct recruitment, 4 were appointed during the currency of the panel, while 3 out of 6 candidates in the promotion panel were promoted against the vacancies earmarked for promotees. Though the learned counsel for the petitioner tried to impress upon this Court that vacancies did exist during the currency of the panel and he invited my attention to the counter-affidavit filed by the Law Officer of the Corporation, which was referred to above in support of his contention, in my considered view, the mere fact of existence of vacancies during the currency of the panel by itself would not be enough for the petitioner to succeed. The Corporation has come out with a detailed explanation for not filling up the vacancies, which existed during the currency of the panel. According to the Corporation, due to reorganization of the Set up, the Junior Assistant post has become a Zonal Post, which required adjustment of the vacancies against the surplus staff on account of introduction of computers. Unless the petitioner pleads and demonstrates that non- filling up of the existing vacancies was mala fide and intended to deny appointments to the selected candidates, non-appointment of the petitioner on account of administrative exigencies despite existence of certain vacancies does not constitute the ground for interference of this Court. No circumstances are brought to the notice of this Court by the petitioner not to accept the detailed explanation given by the Corporation for not appointing the persons from Sl.No.5 including the petitioner during the currency of the panel. From the explanation offered by the Corporation, I am satisfied that even if certain vacancies existed during the currency of the panel, due to the exigencies of administration, the same could not be filled up. Admittedly, further vacancies were notified in 1997 and the petitioner having applied, did not appear for written examination. In the above factual matrix of the case, I am of the view that the petitioner did not make out a case for giving a direction to appoint him, more so, many years after lapse of the select panel. For the above-mentioned reasons, the writ petition is dismissed. C.V.NAGARJUNA REDDY, J 3rd DECEMBER, 2008. kvni [1] 1991 (3) SCC 47 [2] (2008) 7 SCC 210