IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION No.2869 of 2008 Between: 1 The Conservator of Forests, Hyderabad Circle, IInd Floor, Aranya Bhavan, Opp: RBI, Saifabad, Hyderabad. 2 The Divisional Forest Officer, Hyderabad, IInd Floor, Aranya Bhavan, Opp: RBI Saifabad, Hyderabad. 3 The Government of Andhra Pradesh , Rep. by its Principal Secretary, Forest Department, Secretariat Buildings, Hyderabad. ..... PETITIONERS AND D. Gopinath S./o. D. Rajeshwar Rao No. 1-1-404/4/1, Gandhinagar, New Bakaram, Hyderabad. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court may be pleased to issue an appropriate writ order or direction more particularly one in the nature of "Writ of Certiorari" calling for the records relating to and connected with the order in OA No. 5926/06 dt.27-9-2007 on the file of the Hon'ble Andhra Pradesh Administrative Tribunal , Hyderabad and to quash or set aside the same by holding as erroneous and contrary to law. Counsel for the Petitioners: GP FOR SERVICES I Counsel for the Respondent: Sri K.Sudhakara Reddy The Court made the following : THE HON'BLE MR JUSTICE D.S.R.VARMA AND THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION No.2869 of 2008 ORAL ORDER: (per the HON’BLE SRI JUSTICE D.S.R.VARMA) Heard the learned Government Pleader for Services-I, appearing for petitioners, and the learned counsel appearing for the respondent. 2. This writ petition is directed against the order, dated 27.09.2007, passed by the Andhra Pradesh Administrative Tribunal at Hyderabad (for brevity “the Tribunal”), allowing O.A.No.5926 of 2006, which was filed under Section 19 of the A.P. Administrative Tribunals Act, 1985, seeking to declare the action of the first respondent therein in not giving order of appointment as Forest Section Officer to the applicant therein as illegal and arbitrary and consequently to direct the respondents therein to issue order of appointment as Forest Section Officer to the applicant therein with effect from 29.04.2006 duly granting all other consequential reliefs. 3. Petitioners are the respondents and the respondent is the applicant in the O.A., before the Tribunal. 4. For the sake of convenience, in this order, the parties will be referred to per their array in the O.A. 5. For better appreciation, the facts in brief, are as under: Selections were sought to be made for three posts of Forest Section Officers. After completion of selection process, merit list was exhibited on the notice board, wherein Smt.T.Swaroopa Rani, Mr.M.R.C.Ramoji Rao and Smt.Sreevani Seelam were placed at Sl.Nos.1 to 3, respectively. Though all of them belong to BC Community, Smt.Swaroopa Rani got selected under general quota by virtue of merit. The next candidate, by name Sri M.R.C.Ramoji Rao, was appointed as Forest Section Officer through proceedings, dated 29.04.2006, but he refused to receive the copy of the order as he had already joined in some other establishment. Applicant claimed that consequent upon the refusal by the said M.R.C.Ramoji Rao, his case should have been considered for appointment to the post of Forest Section Officer, as he belongs to BC-D community. But, as the same was not considered, he made representations to the first respondent, despite which, the first respondent did not appoint him to the said post. Hence, he filed the O.A. 6. It is the contention of the learned counsel appearing for the applicant that, as per the existing procedure, in case of refusal by a candidate, who is in the selection list, the next candidate ought to be considered for appointment. In order to substantiate this only contention, he placed reliance on the judgment rendered by the apex Court in A.V.BHOGESHWARUDU vs. APPSC[1]. 7. For the sake of convenience and ready reference, it is apt to extract the relevant portion of certain observations made by the apex Court, in the said judgment, which are thus: “….The only point which requires consideration is as to whether, if out of the names recommended for appointment, some candidates do not join, whether the vacancies remaining unfilled should or should not be filled up from out of the remaining successful candidates. We see no justification in the stand of the State Public Service Commission that in stead of filling up the vacancies by recommending the candidates next in order of merit out of the present list, why a fresh selection should be made...” 8. Eventually, the apex Court directed that the remaining vacancies were to be filled up, on account of non-joining of selected candidates, for whatever reason shall be, from the existing list. 9. On a bare reading of the above observations, it appears that a principle had been laid down by the apex Court. When the facts of the said case are looked into, it appears that selection was sought to be made for certain posts, and that the selection process actually commenced in the year 1983 and was completed in the year 1987. During the said period, some more vacancies had arisen. It was the contention of Andhra Pradesh Public Service Commission (for brevity “APPSC”) that, in such a situation, so far as the vacancies that arose during the period 1983 and 1987 is concerned, the same were decided to be filled up by initiating a separate selection process. In fact, the same was not accepted by the apex Court. It was pointed out that the vacancies that arose during the long period of selection process, which went for about four years, should be filled up from out of the selection list available as on that day. Otherwise, obviously, great hardship would be caused to some of the candidates. Therefore, the facts of the above case, in which the said ratio was laid down by the apex Court, are totally different from the case on hand. Furthermore, in the said case, there was no policy as such by way of any rules for filling up the vacancies after completion of the selection process. 10. In the instant case, the Government Pleader for Services-I relied upon G.O.Ms.No.81, dated 22.02.1997, wherein and whereby, in the cases as referred to above, a procedure for selection was prescribed, as per which, the unfilled vacancies, which arose because of non-joining of any candidate or for any other reason, should be filled up only by way of resorting to fresh selection by issuing a fresh notification. 11. The Tribunal did not agree with the said contention for the reason that the said Government Order was issued for filling up the vacancies of some other posts, but not the posts of Forest Section Officers and held that G.O.Ms.No.81 dated 22.02.1997 was not applicable to the present case. 12. However, the learned Government Pleader for Services-I brought to the notice of this Court that subsequently, the Government issued another Government Order, being G.O.Ms.No.544, General Administration (SER.A) Department, dated 04.12.1998, introducing adhoc rule, which is extracted hereunder for ready reference: “Notwithstanding anything contained in the Andhra Pradesh State and Subordinate Service Rules/Special Rules or adhoc rules governing maintenance and operation of waiting list for all the direct recruitments for the posts under the State and Subordinate Services and Last Grade Services that are being taken up by various recruiting agencies and also through Employment Exchange, the maintenance and operation of waiting list for all the recruitments shall be dispensed with and the list of candidates approved/selected in any recruitment by any recruiting agency in the State in any Department for such posts shall be equal to the number of vacancies notified for that recruitment only including those meant for reserved community/category notified by the unit officers. The fall out vacancies, if any, due to relinquishment and non-joining etc., of selected candidates shall be notified in the next recruitment.” 13. From the above, it can be seen that no distinction was made between any of the posts governed by State and Subordinate Service Rules or Adhoc Rules. Eventually, it was directed that all the departments should fill up the fall out vacancies due to relinquishment and non-joining etc., by way of issuing a notification in the next recruitment. 14. In this context, it is to be further noted that the said adhoc rule was issued under Article 309 of the Constitution of India. Therefore, it has got the statutory force and reflects the policy of the Government in filling up the posts, in the cases of present nature, irrespective of the department. 15. We are of the further view that such a rule was not in existence, in the decision relied upon by the Tribunal. In other words, no policy was in force in the form of statutory rules. Therefore, the proposition laid down by the apex Court in A.V.BHOGESHWARUDU’s case (1 supra) is not applicable to the present case, nor can this Court substitute its own view, totally contrary and ignoring the rules, which are very much in force. 16. The learned Government Pleader for Services-I further relies on the judgment of the apex Court in SANJOY BHATTACHARJEE vs. UNION OF INDIA[2], wherein it was held that when selection was made for filling up only certain number of vacancies, after absorption thereof, selection has to be made for the subsequent vacancies from the open market. It was further observed that merely because the selected candidate had been put in the waiting list, he does not get any vested right to an appointment. 17. The facts of the abovementioned case are similar to the facts of the present case, whereas the facts in A.V.BHOGESHWARUDU’s case (1 supra) are totally different and the circumstances therein are very peculiar. 18. As already pointed out, in the said case, selection process, which commenced in the year 1983, went upto 1987 and several vacancies had arisen during the said period of four years. Therefore, the question of preparing the selection list and keeping some of the selected candidates in the waiting list was held to be improper. Hence, it cannot be made applicable to the present set of facts. 19. Similarly, in SANKAR DASH vs. UNION OF INDIA[3], the apex Court held that there is no indefeasible right for any candidate, even though the name of the candidate is found in the selection list and the same can be set aside on any ground of irregularities, at any time, provided there was no arbitrariness. 20. However, it is to be noted that G.O.Ms.No.544, dated 04.12.1998, was not placed before the Tribunal and the same had been placed before this Court. 21. The learned counsel for the applicant was also given an opportunity of going through the said Government Order. 22. For the foregoing reasons, instead of remitting the matter to the Tribunal directing it to consider the scope of G.O.Ms.No.544, for giving a quietus to the litigation, particularly when we are of the view that there is absolutely no ambiguity, whatsoever, in the adhoc rule issued under G.O.Ms.No.544, dated 04.12.1998, we are inclined to allow the writ petition. 23. Accordingly, the Writ Petition is allowed, at the stage of admission, and the impugned order, dated 27.09.2007, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, in O.A.No.5926 of 2006, is set aside. However, there shall be no order as to costs. ___________________ JUSTICE D.S.R.VARMA ___________________ JUSTICE K.C.BHANU 28TH FEBRUARY 2008 SH ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to Government Pleader for Services-I, High Court Buildings, Hyderabad. (OUT) 2.2CD copies [1] 1989 Indian Factories and Labour Reports (SC) 749 [2] (1997) 4 SCC 283 [3] 1991 SC 1612