IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY SEVENTH DAY OF JUNE TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.11336 OF 2011 Between: N. Lakshminarasu & 4 others ..... Petitioners AND The Tirumala Tirupati Devasthanams, Tirupati, Chittoor District, Rep. by its Executive Officer ..... Respondent The Court made the following: HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.11336 OF 2011 ORDER: The present Writ Petition is filed seeking to call for the records relating to the issuance of employment advertisement No.34/2010-11 vide Roc No.E10/4613/2011, dated 07.04.2011, from the respondent and set aside the said advertisement, dated 07.04.2011, in so far as it relates to the posts of Assistant Technical Officer (Civil) by declaring it as arbitrary, discriminatory and illegal and consequently direct the respondent Devasthanam to appoint the petitioners forthwith in the existing vacant posts of Assistant Technical Officer (Civil) in Tirumala Tirupati Devasthanam (for short, “TTD”), in pursuance to the Circular Roc No.TLI/17092/2008, dated 01.01.2009, as has been done in respect of similarly situated in-service candidates from other service in TTD and with all other consequential benefits, monetary or otherwise. 2. The brief facts that are necessary for the disposal of this Writ Petition are as follows: All the petitioners are permanent employees in TTD, having been appointed on regular basis in various categories of posts and put in considerable length of service in various cadres. The probation of the petitioners in the present cadres has also been declared. The petitioners possessed the requisite qualifications prescribed for appointment by transfer to the post of Draughtsman Grade-II, now re-designated as Assistant Technical Officer (Civil), as per the TTD Service Rules, issued in G.O.Ms.No.1060 Rev. Endts-I Dept., dated 24.10.1989. All the petitioners belong to reservation categories. There are three modes of appointment to the cadre of Draughtsman Grade-II (Civil) viz., by direct recruitment, recruitment by transfer and by transfer from any other service, as per the TTD Employees’ Service Rules, issued in G.O.Ms.No.1060, dated 24.10.1989. The practice in TTD, almost from the issuance of the said Service Rules, was that all the vacancies in the cadre of Draughtsman Grade-II were filled up on recruitment by transfer from the in-service candidates or from any other services in TTD. The respondent vide Circular Roc No.TL1/17092/2008, dated 01.01.2009, intimated to all the Heads of the Departments in TTD stating that the respondent proposed to fill up the vacant posts of Assistant Technical Officer (Civil) (Draughtsman Grade- II) from amongst the in-service candidates, i.e., from other services in TTD, who possessed the requisite qualification of LCE/LME under the provisions of recruitment by transfer and called upon the eligible in-service candidates, who were possessing Diploma in LCE/LME and willing to accept appointment to the post of Assistant Technical Officer (Civil), to submit their applications through proper channel along with their bio-datas, Diploma certificates etc., so as to reach the respondent Devasthanam by 20.01.2009. The petitioners possessed B.Tech Degrees/Diplomas, LCE/LME, etc., and are fully qualified and eligible and willing to accept for recruitment by transfer to the post of Assistant Technical Officer (Civil) and, therefore, they have submitted their applications to the respondent Devasthanam within time, duly enclosing their certificates and other service particulars, as desired by the respondent Devasthanam. 3. The respondent Devasthanam filed a detailed counter affidavit stating that the petitioners do not have any legal or vested right to claim the posts of Assistant Technical Officer (Civil); that the petitioners are working as Assistant Fitter (Water Works), Assistant Wireman, Assistant Shroff, Attenders, Mazdoor; that the claims of the petitioners for appointment to the posts of Assistant Technical Officer (Civil) is misconceived for the reason that the petitioners are not working in Feeder category; that they are not entitled to appointment to the posts of Assistant Technical Officer (Civil); that the respondent Devasthanam had never taken up direct recruitment previously for the post of Assistant Technical Officer (Civil) and the respondent Devasthanam decided for direct recruitment to fill the fresh blood in the respondent Devasthanam for giving better facility to the pilgrims; that the Tracer/Civil is the Feeder category for appointment as Assistant Technical Officer (Civil); that the petitioners are not working in work charged establishment; that in response to Memo No.TL1/9875/96, dated 25.05.1996, in which two Mazdoors were appointed for the post of Draghtsman Grade-II to comply with the orders of this Court in W.P.No.9320 of 1994, dated 10.05.1995; that eight in-service candidates were appointed to the post of Draughtsman Grade-II by giving recruitment by transfer after verifying that no person was left over in the Feeder cadre and work charged establishment, due to ban by the government for direct recruitment; that the respondent Devasthanam was forced to take up the method of recruitment by transfer for special reasons from other services in which 30 eligible candidates have applied for eight Assistant Technical Officer posts; that the first petitioner who is also one of the applicants among the 30 candidates, was not successful and his colleagues who have got higher qualifications and higher marks succeeded in getting appointment for the post of Assistant Technical Officer (Civil) and, accordingly, eight Assistant Technical Officers were appointed. 4. A reply affidavit has been filed by the petitioners reiterating the averments in the affidavit filed in support of the Writ Petition and further stating that the entire exercise, except issuance of the appointment orders to the petitioners, was completed, but the change of the circumstances, if any, subsequent to the said exercise, was only the Officer in the post of Executive Officer. Thus, the petitioners were not only discriminated but also their legal rights are infringed. The other averments that the respondent Devasthanam had never taken up direct recruitment for the posts of Assistant Technical Officer (Civil), but the respondent Devasthanam decided for direct recruitment to fill the fresh blood in the respondent Devasthanam for giving better facilities to the pilgrims is not only misconceived but also intended to favour the so-called fresh blood, for extraneous considerations. The petitioners further submitted that they are not seeking any promotion to the posts of Assistant Technical Officer (Civil); that as many as 113 vacancies in the cadre of Draghtsman Grade- II were filled up on recruitment by transfer from the work charged establishment/NMRs/other service in TTD for special reasons. M/s. Manjunath and C.V. Prasad, who belong to the Feeder category viz., Tracer and who had also applied in pursuance to the Circular, dated 01.01.2009, were already promoted to the post of Draughtsman Grade-II. Thus, having acted upon the instructions issued in the said Circular, dated 01.01.2009, it is not open to the respondent Devasthanam to deny appointment on recruitment by transfer to the departmental candidates who belong to other service in TTD as contemplated under the TTD Service Rules. Recruitment by transfer is not only applicable to the persons from work charged establishment but also from any other service for special reasons. The respondent Devasthanam had appointed to the post of Draughtsman Grade-II even the persons from NMR category, let alone from work charged establishment. The departmental candidates from other service candidates stand on a better footing than the work charged establishment, in as much as the departmental candidates are regular employees in the TTD establishment and the work charged employees are only temporary employees and, therefore, the respondent Devasthanam is estopped from contending that the petitioners are not working in the work charged establishment. Admittedly, the very same procedure, which is stipulated in G.O.Ms.No.1060, dated 24.01.1989, had been followed consistently and without any deviation from the year 1989 onwards and the present Officer holding the post of Executive Officer of the respondent Devasthanam cannot deviate from the said procedure to suit his convenience, more so, in the facts and circumstances of the present case. 5. The petitioners’ grievance is that the same procedure ought to have been followed by the respondent Devasthanam and deviation from the said procedure, more so, after completing the entire exercise of recruitment by transfer, in pursuance to the Circular, dated 01.01.2009, is arbitrary, discriminatory and also contrary to law. 6. Learned counsel appearing for the petitioners contended that for the last 22 years, posts of Draughtsman Grade- II are being filled up from other service in TTD and at no point of time, the employees in the work charged establishment were given promotion; that in the first instance, by calling for the applications from the petitioners and others who are eligible for the posts of Draughtsman Grade-II and after satisfying that they are eligible for the promotion, but the impugned notification, dated 07.04.2011, was issued solely for the reason of change of Executive Officer basing upon the G.O.Ms.No.58, Transport Roads and Buildings (SER.II), dated 01.05.2002; that G.O.Ms.No.58 has no application at all to the present facts of the case as it applies only to the direct recruitment in the category of Grade-III only but not Grade-II; that, in the absence of any rule, they cannot issue the present notification, dated 07.04.2011, so as to process the selection for the posts of Draughtsman Grade-II which is otherwise called as Assistant Technical Officer (Civil). Learned counsel for the petitioners further contended that with a hope that the petitioners would get promotions, they prosecuted their studies and obtained degree in Engineering and, hence, he prays to set aside the impugned notification, dated 07.04.2011. 7. On the other hand, the learned standing counsel appearing for the respondent Devasthanam contended that since the petitioners do not belong to the work charged establishment, the question of considering their cases for the promotion to the Draughtsman Grade-II does not arise and that as per the Rule in G.O.Ms.No.1060 Rev. Endts-I Dept., dated 24.10.1989, the recruitment to the post of Draughtsman Grade-II is: 1. by direct recruitment 2. by direct recruitment from work charged establishment and 3. by promotion, and therefore, simply because on earlier occasions, some persons who do not belong to the work charged establishment were appointed, that cannot be a ground for setting aside the impugned notification, dated 07.04.2011. Therefore, he prays to dismiss the Writ Petition. 8. By way of Circular Roc.No.TL1/17092/2008, dated 01.01.2009, the respondent Devasthanam called for applications from the in-service employees of TTD who are possessing LCE Diploma and willing to work as Assistant Technical Officer (Civil) to submit the applications to the Executive Officer through proper channel. The reason for issuing the said circular is that there are no eligible candidates in Tracer cadre to consider for promotion and also there are no eligible candidates in the work charged establishment with required qualifications and experiences to consider for recruitment by transfer as Draughtsman Grade-II. Hence, it is decided to resort to recruitment by transfer from other service in TTD. Thereafter, considering the qualifications, the respondent by Memo Roc.No.TL1/17092/2008, dated 29.05.2009, requested the concerned Drawing Officers to send the service records of petitioners to fill up the vacant posts of Assistant Technical Officers. The applications of petitioners and some others were processed and note orders were approved, but orders of appointment by transfer were not issued. While the matter stood thus, it seems there was a change of Executive Officer. The present Executive Officer issued the present notification, dated 07.04.2011, calling for the applications to fill up the posts of Assistant Technical Officer (Civil) by direct recruitment. The basis for inviting applications by the respondent Devasthanam for direct recruitment to the post of Assistant Technical Officer (Civil) is G.O.Ms.No.58, Transport Roads and Buildings (SER.II), dated 01.05.2002, which relate to Andhra Pradesh Roads and Buildings Engineering Subordinate Service Rules. As seen from the G.O.Ms.No.58, as rightly contended by the learned counsel for the petitioners, it has no application because the ratio between direct recruits and transfer by promotion prescribed therein is with regard to Draughtsman Grade-III. So, the question of applying the said G.O.Ms.No.58 to the post of Draughtsman Grade-II in direct recruitment does not arise. 9. However, the rules relating to the recruitment of Draughtsman Grade-II are governed by G.O.Ms.No. 1060, Rev. Endts-I Dept., dated 24.10.1989. The qualifications required for recruitment for the post of Draughtsman Grade-II are: 1. By direct recruitment (i) Must possess L.C.E. Diploma issued by the Board of Technical Education or an equivalent qualification thereto. 2. By direct recruitment from Work charged Establishment (i) Direct recruitment including recruitment of persons from work charged establishment who possess the LCE/LME Diploma without the medium of employment exchange or for special reasons recruitment by transfer from any other service. (ii) Must have 5 years service in work charged establishment. (iii) In the case of Diploma holders appointed from work charged establishment, one must not have completed the age of 35 years. 3. By promotion By promotion from the post of Tracer: (i) Must have passed LCE/LME or ITI Draughtsman (Civil) course or any other course as equivalent thereto. (ii) Must have put in 3 years of service as Tracer. (iii) Must have passed the Account Test for PWD Officers. If not possessing the qualifications indicated in (i) above, must have put in 5 years of service as Tracer. 10. Learned counsel for the petitioners placed a strong reliance on the transfer by promotion from any other service in TTD as provided by direct recruitment from work charged establishment. The second category of recruitment in the above Government Order is relevant for the purpose of this case. For the purpose of claiming this category, the condition precedent is that an employee must be working in the work charged establishment. Then such employee must possess the LCE/LME Diploma without the medium of Employment of Exchange or for special reasons, recruitment by transfer from any other service. According to the learned counsel for the petitioner, the case of the petitioners fall under the category of ‘any other service’ whether the words ‘any other service’ relates to only the services of employees working in the respondent or any other services of State Government. If the words ‘any other service’ is limited to respondent only, then in the second category of recruitment, the words ‘from work charged establishment’ would not have been incorporated. Hence, the words ‘any other service’ have to be read in juxta position with the words ‘from work charged establishment’. If the same is read harmoniously, it is clear that an employee claiming promotion to the post of Draughtsman Grade-II must be working in any capacity in the work charged establishment and subject to other educational qualifications. Therefore, in the second type of recruitment, the mode of recruitment and qualifications and conditions prescribed have to be read together in its entirety so as to ascertain the true intention of the rule making authority. An employee from any other service of State Government can be eligible for Draughtsman Grade-II, provided that such employee must be working in the work charged establishment of any other service. Therefore, simply because the petitioners are working in the other services in TTD that does not mean that they are eligible for the post of Draughtsman Grade- II post unless their services are recognized and come within the meaning of the work charged establishment. It is not in dispute that the work charged establishment relates to Engineering Wing of any State service. 11. Admittedly, the petitioners are not working in the work charged establishment of respondent or any other engineering service of State Government. Therefore, when three modes of appointment for the post of Draughtsman Grade-II (Civil) is provided as per G.O.Ms.No.1060 Rev. Endts-I Dept., dated 24.10.1989, that procedure has to be followed by the Appointing Officer. Simply because some appointments were made on earlier occasions from other services in TTD other than the work charged establishment, that cannot be a ground for claiming promotion unless their case falls under the second category of recruitment. No doubt, the promotions have been effected for the last 20 years from the other category of services whose services have not been come within the meaning of work charged establishment, but that does not mean the respondent Devasthanam cannot make any direct recruitment by calling for the applications so long as the action of respondents comes under the service rules. A mandamus cannot be given to direct respondent to act contrary to rules applicable to the post notified. Therefore, when the petitioners do not come under the category of work charged establishment as per the second mode of recruitment for the post of Draughtsman Grade-II, they have no right to challenge the present notification, dated 07.04.2011. When the notification, dated 07.04.2011, is in accordance with the Recruitment Rules governing the said post, namely, Draughtsman Grade-II, the question of quashing the same does not arise. Hence, the Writ Petition is devoid of merit and is liable to be dismissed. 12. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. ______________ (K.C.BHANU, J) Dated: 27th June, 2011. KL HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.11336 OF 2011 27th June, 2011 KL