IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SEVENTH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE Mr. JUSTICE C.V.RAMULU WRIT PETITION No. 7471 of 2007 Between: 1 Dr. B. Sreekanth, S/o.B.P.Rangaswamy, R/o. Sriranga Nilayam, Muchukota Village,and Post, Peddapappur Mandal, Anantapur District. 2 Dr.K.Maddileti, S/o late K.Dastagiri, R/o.H.No.3/341, Biside Hanuman Temple, Akuthotapalli Village, Anantapur Rural Mandal, Anantapur District. ..... PETITIONERS AND Krishnadevaraya University, Anmantapur, rep. by its Registrar. .....RESPONDENT 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 of Mandamus or any other appropriate writ more direction declaring the notification issued by the respondent in No.SKU/EE.II/General/2007 dt. 26.2.2007 as illegal arbitrary and contrary to G.O.Ms.No.420 dt. 18.11.1995 and G.O.Ms.No. 65 dt. 15.2.1997. Counsel for the Petitioner: Mr.D.V.SITARAMAMURTHY Counsel for the Respondent: Mr. E. MANOHAR, Sr.Advocate The Court made the following : THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.Nos.7471, 10180, 11091 and 11158 of 2007 COMMON ORDER: In all these writ petitions, common questions of law and fact arise for consideration, therefore, they are being disposed of by this common order. The facts as narrated in W.P.No.11158 of 2007 are as under: It is the case of the petitioner that the first respondent is an Autonomous body constituted under the A.P. Universities Act. The respondent University is following the roster prescribed under Rule 22 of A.P. State and Subordinate Service Rules called as ‘General Rules’ as per G.O.Ms.No.420 Edn. (UEI) Department, dated 18.11.1995 for the purpose of recruitment of its staff. As per the said G.O., each group of subjects is a separate unit for communal roster cycle and the subjects shall be arranged alphabetically for the purpose of continuity of 100-point roster. The general rules were amended in 1996 providing for compulsory reservation in favour of Women and Backward Class (BC) communities (carry forward). After the new rules came into force, the respondent University conducted recruitment in 1997 and all the vacancies notified in the said recruitment were filled up. Thereafter, the present impugned notification No.SKU/EE General 2007 dated 26.2.2007 was issued by the first respondent under the new rules. In the impugned notification, 14 vacancies under Group-I (Arts) and 15 vacancies in Group-II (Sciences) were notified. Out of 14 vacancies in Group-I, (8) are reserved for various social groups and similarly (9) out of 15 in Group-II were reserved for various groups. According to Rule 22(2)(i), the reservation in any particular recruitment shall not exceed 52% of the total vacancies. (8) posts reserved in Group-I comes to 57.14% and (9) in Group-II comes to 60%. Therefore, the notification is in violation of Rule 22 of the General Rules. It appears, petitioner, after issuance of notification, sought information under the Right to Information Act as to roster points of notified posts. The respondent-University vide its letter No.SKU/RTI/PA-R/2007 dated 26.3.2007 furnished the said information to the petitioner. Surprisingly, in the above list furnished by the University, integrated groups were bifurcated to manipulate the roster and two unfilled vacancies reserved for Backward Class community notified prior to the amendment of Rule 22 of the General Rules were carried forward. The roster in Group-I started from Roster Point No.70 and in Group-II from 62. Roster Point No.64 (BC-D) in Group-I notified in 1991 and roster Point No.29 (BC-A) in Group-II notified in 1985, which could not be filled up, are now carried forward. There is no provision to carry forward the unfilled vacancies reserved for B.C. community prior to 1996 amendment. Therefore, the reservation of item No.4 in Group-I and item No.1 in Group-II as backlog vacancies for B.C. is illegal and the notification read with information furnished by the respondents is not in consonance with G.O.Ms.No.420 i.e. each group was not shown as a separate unit and the subjects were not arranged alphabetically for the purpose of communal roster. The groups were bifurcated irregularly to suit their design. The fourth respondent is an employee of an aided college and is a member of the Executive Council. He possesses Doctorate in History and qualified for the post of Assistant Professor in History. The Executive Council to which the fourth respondent was a member, finalized the roster and notification and it is the body, which finalises the recruitment itself. Being the member of appointing authority, the fourth respondent is not supposed to participate as candidate for recruitment. He applied for the post of Assistant Professor in History. The History subject, according to its alphabetical position, should be at roster point No.77, which goes to Scheduled Caste. But with a view to accommodate the fourth respondent, the Group-I posts are bifurcated and History is shown at Roster Point No.80 (O.C) whereby the fourth respondent can be considered. Similarly, the subject of Adult Education should be shown as first post according to its alphabetical position. If the same was shown according to the rule, it should be at Roster Point No.70 (BC-A), but in the bifurcation, it was moved to Roster Point No.76 to suit one Dr.Prathap who does not belong to B.C. community. He is working as Teaching Assistant in the Adult Education Department of the respondent University. Similarly, Physics subject, according to its alphabetical order should be at Roster Point No.73 (OC), but it was pushed down to point No.74 (BC-B) to accommodate one Dr.K.Ramagopal who belong to B.C.(B) category and student of the then Registrar Prof. Ramakrishna Reddy who finalized the roster and issued the notification. Similarly, there is no post of Business Administration in the Budget Book. In the list of existing vacancies furnished by the respondent University, there are two vacancies in Management subject. As per its alphabetical order, the management (subject) should be shown at Roster Point Nos.78 and 79, which are reserved for O.C. (W) and B.C. (A) respectively. But in the impugned notification, they are shown at Roster Point Nos.71 and 72 meant for O.C. (W) and S.C. to suit one Dr.Devaraj, Teaching Assistant in M.B.A. Department. So also, the Chemistry subject was shown at roster Point No.62 (SC) by way of bifurcating the integrated subjects to accommodate one Dr.T.Subbarayudu who worked as Teaching Assistant in the University. Otherwise, it should be at roster Point No.66 (SC-W). Two candidates by name Dr.V.Ravisekhar in Zoology and Dr.D.Sreenivasulu in Commerce were still pursuing their Ph.D. in the respondent University by the last date of notification, but their applications were also received with a view to select them though they were not eligible. Some of the posts notified are found in the vacancies list and some of the vacancies in the list furnished were not notified. The respondent- University did not notify two vacancies in Physics, two in Management, two in O.R. & S.Q.C. (KNL) and one each in Telugu, Commerce and Chemistry which are existing as per the list furnished by them and on the other hand have notified two vacancies each in Sericulture, Social Work, Law and one each in Bio-Chemistry, Education and Sociology, where there are no vacancies. These posts are notified only to accommodate their own candidates. Some of the names of candidates whose selection is most probable and in fact notified for accommodating them, are as follows: Sl.No. Name Subject 1. Dr.M.Sreeramulu Law 2. Dr.D.Chandramouli Reddy Political Science & Public Admn. 3. Dr.P.Lakshminarayana Reddy Sericulture 4. Dr.V.Ramakrishna Bio-Technology 5. Dr.P.Suresh Bio-Technology The candidates at serial Nos.1 to 4 are already working in the University and the fifth is the son of Prof. Rajarathnam Setty of S.K. University. For other notified vacancies also there are interested candidates of the Executive Committee. It is most unfortunate that the selection committee was constituted by the Chairman of second respondent with the candidates of his choice only to fill up almost all the posts with the candidates of his community. Because of the manipulation of the roster, the Zoology is reserved for B.C.(D) and petitioner could not apply for it. The respondents 1 to 3 left no stone unturned to make use of loopholes. Therefore, this writ petition. A detailed counter affidavit has been filed on behalf of respondents 1 to 3 by Mr.N.Venkata Subbaiah, Incharge Registrar of S.K. University, Anathapur stating that the last recruitment for academic staff was undertaken only in 1997 and thereafter there was no recruitment under general notification. In view of the same, several posts of Assistant Professors are lying vacant, besides other teaching posts. The Government of Andhra Pradesh, Higher Education Department through letter dated 5.1.2005 (Ex.R1) permitted the University to fill up 15 posts of Assistant Professors in the respondent University. In the said letter, it was specifically mentioned that it is for the Registrar to take necessary action for filling up the above posts in the required departments by giving notification duly following the rules. The Government has not mentioned the departments in which such recruitment can be taken up and the discretion was given to University to decide about the requirement of the University. The Executive Council of t h e Respondent University resolved on 18.3.2005 (Ex.R2) to advertise 15 posts of Assistant Professors as permitted by the Government of Andhra Pradesh. However, the recruitment could not take place for reasons, such as, retirement of Vice Chancellor of the University and in view of some objections having been raised by individuals with regard to roster points which required examination. The notification as contemplated was not issued immediately. In the meanwhile, through G.O.Ms.No.58, Higher Education (UE-I) Department dated 18.5.2006 (Ex.R3), Government has permitted for filling up of teaching posts in various Universities including the respondent University. The respondent University was permitted to fill up 14 posts of Assistant Professors and two posts of Associate Professors in the specified departments as mentioned therein. The Registrar vide letter dated 27.12.2006 (Ex.R4) addressed to the Director of B.C. Welfare, requested for approval of the roster points for filling up 29 (15 + 14) posts of Assistant Professors, which were permitted to be filled up by the Government in two spells. Along with the said letter dated 27.12.2006, the respondent University furnished the details of the departments in which the recruitment for the posts of Assistant Professors is to be taken up and also mentioning the roster points for the said posts, group wise. G.O.Ms.No.995 dated 16.12.1982 (Ex.R5) and G.O.Ms.No.420 dated 18.11.1995 (Ex.R6) prescribe the procedure for following roster points as per the reservation policy of the State for academic positions in the Universities. As per the said G.Os., the departments/subjects within the group i.e. Arts, Science and Engineering and Technology shall be arranged in alphabetical order for the purpose of roster points. In other words, as and when the vacancies are sought to be filled up in the category of Assistant Professors, the concerned subjects falling under a particular group i.e. either Arts, Science or Engineering and Technology have to be arranged in alphabetical order and the roster points to each group applied separately. Further, the Director of B.C. Welfare through his letter dated 2.12.2006 (Ex.R7) wrote to the respondent University clarifying regarding unfilled roster points of B.C. candidates and specifically directing to follow G.O.Ms.No.65 dated 15.2.1997 (Ex.R8), which would show that unfilled reserved vacancies have to be carried forward for the next recruitment and that the same shall be repeated for three consecutive recruitments. Along with letter dated 27.12.2006, a table was furnished to the Director of B.C. Welfare, mentioning about the subjects/departments in which the recruitment is to be taken up by giving roster points group wise for all 29 posts which were permitted to be filled up by the Government in two spells. In the earlier recruitment, one post of BC-D (W) at roster point No.64 in Arts group and one post of BC-A at roster point No.29 in Science group were not filled up due to non-availability of the candidates at that relevant time. Keeping in view the directions given by the Director, B.C. Welfare in letter dated 2.12.2006, the said roster points i.e. 64 and 29 for Arts and Science respectively have been earmarked for the first slot/subject and thereafter the running roster as per the roster register starts from 70 and 62 for Arts and Science respectively. The roster points ended with 75 and 68 for Arts and Science respectively. For 14 posts, which were permitted to be filled up separately, the roster points were operated from 76 and 69 respectively, which ended with 82 and 75 respectively. Similar letters were also sent to the Commissioner of Social Welfare and Commissioner of Tribal Welfare (Ex.R9). All the three departments have addressed letters to the respondent University approving the procedure adopted by the University in fixing the roster points. Accordingly, the respondent University issued the impugned notification dated 26.2.2007, after the approval of Executive Council on 24.2.2007 (Ex.R10). All the 29 posts of Assistant Professors earmarked by the concerned reserved categories have been notified together. In the whole process, the respondent University has followed all the relevant G.Os. and roster points scrupulously. The grievance of the petitioner is that the post of Assistant Professor in Zoology is reserved for BC-D category and therefore, he is denied of opportunity to compete for the post. The fixation of roster points was strictly in accordance with rules in vogue and petitioner cannot have any grievance. Petitioner has not challenged the relevant G.Os. which were followed by the respondent University. Therefore, the writ petition is misconceived and deserves to be dismissed. Further, the contention that the whole exercise of fixing roster points was made only to favour some persons is denied as baseless and vague. No mention is made about who is interested in whom and in the absence of any such particulars, this Court may not entertain such an allegation. At any rate, the whole procedure has been taken up in accordance with rules in vogue. However, the allegation that some vacancies, which were not referred/mentioned in the information furnished to Dr.B.Sreekanth were advertised is true. It is also true that some posts, which are mentioned as vacant in the information furnished to him were not advertised. The availability of the vacancies in the respondent University is one thing and advertising them for filling up is another thing. Merely because in some departments vacancies are available, as mentioned in the information furnished to him, it is not necessary for the respondent University to fill up all the vacancies and the petitioner cannot compel the respondent University to advertise all the available vacancies. There are several other vacancies in various departments/subjects, for which there is no sanction from the University Grants Commission and no financial concurrence from the Government of Andhra Pradesh. Therefore, the list furnished to the petitioner is not exhaustive and shows vacancies for which the University Grants Commission and the Government of Andhra Pradesh have granted approval. There are several departments where there is a requirement, though the posts sanctioned by the University Grants Commission and the Government of A.P. are filled up. It is a fact that the Government through its letter dated 5.1.2005 has permitted the respondent University to fill up 15 posts of Assistant Professors keeping in view the requirement of the University. Government authorised the University to find out the need of the departments and fill up the posts by way of advertisement. It is the contention of the petitioner that the roster point in Arts and Science in the earlier recruitment ended with 69 and 61 in Arts and Sciences respectively and therefore, in the present advertisement the roster point should start 70 (BC-A) and 62(SC) for Arts and Science respectively and contrary to the same, the present roster starts with OC and with BC-A for Arts and Science respectively. There is no dispute about these facts. As already explained above, in order to comply the directions of B.C. Welfare Department, Government of A.P. dated 2.12.2006 and to make good unfilled vacancies of Backward Classes i.e. B.C-D (W) and BC-A in Arts and Science respectively, in the earlier recruitment the first post in the groups were not earmarked for the said roster points and thereafter started the roster points with 70 and 62 in Arts and Science respectively as per the roster register. The roster has been fixed for the above said reasons and not for the reason as stated by the petitioner. The fixation of roster was to see that all the communities are given equal opportunity as directed by the concerned department and it is also in tune with the relevant G.Os. holding the field. The other contention of the petitioner that the roster points were not properly fixed on the ground that applying roster points for 15 posts and 14 posts in two different spells and all the 29 posts together should have been arranged in alphabetical order in two different groups, thus changing the roster points is incorrect. Though it is correct to state that the following procedure as mentioned by the petitioner would lead to a different kind of roster points, the same is not adopted inasmuch as 15 + 14 posts have been sanctioned on two different occasions in two different phases with different directions and therefore, both the lists are separately drawn and in each list, Arts and Science groups were separated and roster points were applied. Though the respondent University sought approval and permission through the same letter, as permission to fill up the posts was on a different footing and in different circumstances, both had to be treated separately and accordingly they were treated so. As explained above, insofar as 14 posts are concerned, which were sanctioned in the second spell, there is a financial burden on the respondent University. As a matter of fact, the posts could have been filled up by way of issuing two different notifications and by doing so the present contention would not have been available to the petitioners. Common notification was issued clubbing both the permissions to fill up the posts only to avoid delay in filling up the posts coupled with financial wastage, therefore, petitioner cannot contend that all the 29 posts have to be clubbed into one pool for the purpose of application of roster in each of the groups. Petitioners have formulated their own roster points by clubbing all the 29 posts and contending that the advertisement should have been in the manner they mentioned in para 8 of the affidavit. Such a procedure is not borne out of any rule or provision and it is only based on the imagination of the petitioners. Insofar as first sanction of 15 posts are concerned, the discretion was left to the respondent University, whereas for the 14 posts in the second spell, the posts which are to be filled up have been specifically mentioned. The financial commitment of the University is also on a different footing. In this view of the matter, the reliance placed by the petitioners on the table prepared by them is baseless and the same cannot be followed. The allegation that Rule 22(2)(i) of A.P. State and Subordinate Service Rules is violated inasmuch as posts for reserved categories exceed 52 percent of the total vacancies is misconceived. The recruitment is based on a hundred point roster which has to be operated continuously and in a particular situation, selection may be taken up only for two vacancies and if the roster is operated, one may go to SC community and another may go to ST or BC community, thereby both the vacancies are reserved for reserved communities only and as a matter of fact, it would amount to hundred percent reservation to reserved communities. In other words, what is important to see is whether by providing roster points, if the reserved candidates are being accommodated within their share of quota, and in such a case, the same cannot be faulted. Therefore, the contention of the petitioner is baseless. Further, the contention of the petitioner that the fourth respondent is a member of Executive Council and that he being a member of Executive Council finalized the roster and notification etc., and that he is also an aspirant for the post of Assistant Professor in History and therefore, the whole procedure is vitiated and the whole roster points were fixed only to accommodate the fourth respondent is incorrect. The fourth respondent is a BC(C) candidate whereas, as per the notification, the post of Assistant Professor in History was earmarked for O.C. community, therefore, the contention of the petitioner is baseless. Further, merely because the fourth respondent is one of the members of Executive Council, no malafides can be attributed against all the members of the Executive Council. The writ petition is devoid of merits and liable to be dismissed. The learned Senior Counsel Sri D.Prakash Reddy appearing for petitioners in W.P.No.11158 of 2007 and Sri D.V.Sitharam Murthy appearing for petitioners in W.P.Nos.7471 and 10180 of 2007 stated that the first 15 vacancies were sanctioned on 5.1.2005 and the second spell of 14 vacancies were sanctioned on 18.5.2006. Of course, in the first sanction of 15 vacancies, there was no restriction for the University to fill up the posts, but in the second sanction, i.e. 18.5.2006, 14 posts were sanctioned against specified subjects. Therefore, it would have been proper on the part of the University to notify all the posts put together 29 (15+14) by arranging them in alphabetical order showing roster points against them in serial order i.e. all the subjects in Science group as one i.e. from the first sanction as well as second sanction by clubbing Arts and Science subjects both in the first and second sanction or even if the University wanted to notify separately as is done in the impugned notification dated 26.2.2007, there was no necessity for the University to jumble the specified subjects sanction in the second spell i.e. 14 vacancies by clubbing them in the first 15 vacancies. This is done only to favour certain individuals and even otherwise, it is arbitrary and illegal and not in consonance with the rule of reservation and arranging them in alphabetical order. The learned senior counsel further stated that the respondents have admitted the mistake committed by them, but wanted to justify the same stating that they have sought approval of Director of B.C. Welfare as well as Government, in this regard. Even if there is any such sanction by the Director of B.C. Welfare and the Government, the arbitrariness in the notification is writ large and deserves to be condoned. Therefore, the impugned notification is shrouded with suspicion apart from being arbitrary and illegal. Sri E.Manohar, learned Senior Counsel appearing for respondent-University stated that in the first sanction dated 5.1.2005, 15 vacancies were sanctioned and of course subjects were not specified. In the second sanction dated 18.5.2006, 14 subjects were specified against which the recruitment is supposed to be taken up. The 15 vacancies sanctioned in the first spell also include two unfilled posts, which are called as backlog vacancies which are required to be filled up as per Rule 22 of A.P. State and Subordinate Service Rules, which is mandatory. Further, the Government sanctioned the posts and they were arranged subject-wise and roster-point wise and sent for Government’s approval and in fact the Government has approved the same. The University is an autonomous body and is free to fill up those vacancies or shift from one list to other list as is done in this case without any prior approval of the Government to meet the day-to-day administrative demands. Unless there is a strong case made out, there cannot be any interference with the notification issued by the University. However, the lists prepared as per the roster points has been approved by the Executive Council and sent to the Government for its approval. As contended by the learned counsel for respondents, the Executive Council approval is not necessary as per Section 43 or 43-A of A.P. Universities Act, 1991. The University has followed