THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT PETITION No.27284 of 2007 Dated: 15.09.2009 Between: The District Educational Officer & Member Convener-DSC-2003, Adilabad District, And others. .. Petitioners. And Mohd. Nowman Arshad And another. .. Respondents. ORDER: (Per Hon’ble Sri Justice V.Eswaraiah) Aggrieved by the order of the A.P.Administrative Tribunal, Hyderabad, dated 20.07.2006, in O.A.No.630 of 2005, in directing the petitioners herein to consider the case of the respondents herein, in accordance with G.O.Ms.No.45 Education dated 19.02.2005, against the vacancies, which are kept vacant in the category of S.G.T (Urdu) and pass orders, this writ petition for Certiorari is filed. The respondents herein filed O.A.No.630 of 2005 on the file of the A.P. Administrative Tribunal, Hyderabad, contending that the Commissioner and Director of School Education issued notification dated 14.11.2003 for recruitment of various categories of teachers, including Secondary Grade Teachers (S.G.T.), and according to the said notification, in the cadre of S.G.T. (Urdu), three vacancies were earmarked for OC (General), and likewise three vacancies for BC-D (Women), one for BC-A (Women), two for SC-B (Women), two for SC- C (Women) and four for ST (Women), as such, in all 14 vacancies in the cadre of S.G.T. (Urdu) in Adilabad District were notified. As three vacancies were shown in the notification earmarking for OC (General), the respondents applied for the said post, as they possessed the requisite qualifications, and hall tickets were issued to them and they appeared for the examination, which was conducted on 04.04.2004. The results were published on 12.06.2004 and the 1st respondent secured 1st rank and the 2nd respondent secured 3rd rank by obtaining 75.5 and 71 marks respectively. Though the results were published in the month of June, 2004, the authorities have not taken any steps for appointment of the selected candidates as per the decision taken by the Government to fill up the vacancies as per the DSC-2003 notification and, therefore, the said O.A. was filed seeking a direction to fill up the vacancies of O.C. (General) as per the merit as notified for DSC-2003 in the month of November, 2003, by declaring the action of the respondents therein in taking steps to fill up all the three O.C. (General) vacancies with O.C. women as illegal and arbitrary. The Tribunal, having considered the matter in detail and the averment made in the counter filed therein that the Government issued orders in G.O.Ms.No.45 Education dated 19.02.2005 permitting the Director of School Education, Andhra Pradesh, Hyderabad/District Collectors & Chairman District Selection Committee-2003 in the State to fill up the vacancies of teachers of DSC-2003 of Urdu Medium reserved for SC/ST/BC & Women, by candidates belonging to open Category, if SC/ST/BC/ & Women candidates are not available, by order dated 20.07.2006 disposed of the O.A. directing the respondents therein to consider the case of the applicants therein, in accordance with G.O.Ms.No.45 Education, dated 19.02.2005, against the vacancies, which are kept vacant in the category of S.G.T. (Urdu) and pass orders, within a period of three weeks, from the date of receipt of the order, with consequential benefits. Aggrieved thereby, the respondents therein filed the present writ petition. Learned Government Pleader for Services-I appearing for the petitioners submits that all 14 vacancies are the backlog vacancies earmarked for women category of S.Cs, S.Ts and B.Cs and 33% Open Competition (Women) were already filled. It is stated that as the women category of S.Cs, S.Ts and B.Cs were not filled, the said vacancies are sought to be filled up by the O.C (Women) category and after the notification was issued on 14.11.2003 for DSC-2003, the breakup of 14 posts were given in December, 2003 showing that three vacancies are reserved for OC (General) and all other vacancies are for the women of various other categories. It is stated that, in fact, the said three vacancies, under which the respondents herein sought their appointment, have to be filled up by O.C (Women) alone and, therefore, the respondents though secured 1st and 3rd ranks respectively have not been given appointments. It is further stated by the learned Government Pleader appearing for the petitioners that as per Rule 22 (2) (h) (I) read with (g), the unfilled posts belonging to women candidates of various categories of B.Cs, S.Cs., S.Ts. have to be filled up by a limited recruitment and even after limited recruitment, women candidates of a particular category are not available, it is open for the Government to fill up such vacancies on the basis of the Open Competition. He also submits that as the vacancies in question belong to the women category of a particular community, the women candidates of Open Competition alone have to be recruited to the said posts. We are unable to accept the aforesaid contention of the learned Government Pleader. Rule 22 (f), (g) and (h) of the A.P. State & Subordinate Services Rules, 1996 (for short ‘the Rules’) read as under:- “(f) The reservation in the case of Backward Classes (Group-A), (Group-B), (Group-C) and as the case may be (Group-D) and Physically handicapped persons shall be in force for the period commencing from the 23rd September, 1990 to 22nd September, 2000. (g) If in any recruitment, qualified candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes (Group-A), (Group-B), (Group-C) and as the case may be (Group-D) and women are not available for appointment to any or all the vacancies reserved for them, a limited recruitment confined to candidates belonging to them shall be made immediately after the general recruitment to select and appoint qualified candidates from among the persons belonging to these communities to fill such reserved vacancies. (h) (I) If in any recruitment, qualified candidates belonging to Scheduled Castes or Scheduled Tribes or, Backward Classes (Group-A), (Group-B), (Group- C) and as the case may be (Group-D) or Women are not available for appointment to all or any of the vacancies reserved for them even after conducting a limited recruitment as specified in sub-rule (g), such vacancies or vacancy may be allotted to the Open Competition after obtaining the permission of the Government and may, thereafter, be filled by a candidate or candidates selected on the basis of open competition. (II) Where any vacancies reserved for the Scheduled Castes or Scheduled Tribes or Backward Classes (Group-A), (Group-B), (Group-C) and as the case may be (Group-D) or Women are so filled by candidates belonging to other communities, an equal number of vacancies shall be reserved in the succeeding recruitment or for the Scheduled Castes or Scheduled Tribes or Backward Classes or Women in addition to the vacancies that may be available for that recruitment for them and if in the said succeeding recruitment year also, qualified candidates belonging to the Scheduled Castes, or Scheduled Tribes or Backward Classes (Group-A), (Group-B), (Group-C) and as the case may be (Group-D) or Women are not available for appointment to all or any of the additional vacancies which are so reserved in that succeeding recruitment year, an equal number of vacancies shall again be reserved in the next succeeding recruitment year for the Scheduled Castes or Scheduled Tribes or Backward Classes (Group-A), (Group-B), (Group-C) and as the case may be (Group-D) or Women in addition to the number of vacancies that may be available for the next succeeding recruitment for the Schedule Castes or Scheduled Tribes or Backward Classes (Group-A), (Group-B), (Group-C) and as the case may be (Group- D) or Women: Provided that if in the said second succeeding recruitment also no qualified candidates belonging to the Scheduled Castes, or Scheduled Tribes or Backward Classes (Group-A), (Group-B), (Group-C) and as the case may be (Group-D) or Women are available for appointment to all or any of the additional vacancies which are so reserved in that succeeding recruitment year, an equal number of vacancies shall again be reserved in the next succeeding recruitment year for the Scheduled Castes or Scheduled Tribes or Backward Classes (Group-A), (Group-B), (Group-C) and as the case may be (Group-D) or Women in addition to the number of vacancies that may be available for the next succeeding recruitment for the Scheduled Castes or Scheduled Tribes or Backward Classes or Women; Provided further that in the third succeeding recruitment if qualified candidates belonging to Scheduled Tribes or as the case may be Scheduled Castes are not available, a vacancy reserved to be filled by a candidate belonging to Scheduled Tribes may be filled by a candidate belonging to Scheduled Castes and a vacancy reserved to be filled by a candidate belonging to Scheduled Castes may be filled by a candidate belonging to Scheduled Tribes and if a qualified candidate belonging to a particular group of Backward Classes (Group-A), (Group-B), (Group-C) and with case may be (Group-D) is not available for appointment, the vacancy reserved to that group shall accrue to the next group; Provided further that if after three successive recruitments, if no candidate belonging to Scheduled Castes, Scheduled Tribes and Backward Classes (Group-A), (Group-B), (Group-C) and with case may be (Group-D) or Women is available, such vacancy will be treated as dereserved.” Rule 22-A of the Rules reads as under: “Notwithstanding anything contained in these rules or special rules or Adhoc Rules: (1) In the matter of direct recruitment to posts for which women are better suited than men, preference shall be given to women: Provided that such absolute preference to women shall not result in total exclusion of men in any category of posts. (2) In the matter of direct recruitment to posts for which women and men are equally suited, there shall be reservation to women to an extent to 33 1/3% of the posts in each category of Open Competition, Backward Classes (Group-A), Backward Classes (Group-B), Backward Classes (Group-C) Backward Classes (Group-D), Scheduled Castes, Scheduled Tribes and Physically Handicapped and Ex- Servicemen quota: (3) In the matter of direct recruitment to posts which are reserved exclusively for being filled by women, they shall be filled by women only.” Rule 22 (2) (a) of the Rules reads as under:- “The unit of appointment for the purpose of direct recruitment shall be hundred vacancies of which fifteen shall be reserved for Scheduled Castes, six shall be reserved for Scheduled Tribes, twenty-five shall be reserved for the Backward Classes and the remaining fifty-four appointments shall be made on the basis of open competition and subject to Rule 22- A of these rules. Under Rule 22 (2) (e) of the Rules, the appointments under Rule 22 shall be made in the order of rotation specified in a unit of hundred vacancies. In the unit of 100 vacancies, every post has been earmarked as to whether the particular vacancy has to go to Open Competition-Women, Open Competition or particular group of B.C., S.C., S.T. and Women candidates of a particular group. Under Rule 22 (2) (g) of the Rules, if in any recruitment, qualified candidates belonging to a particular group of S.C., S.T., and B.C., and women are not available for appointment to any or all the vacancies reserved for them, a limited recruitment confined to candidates belonging to them shall be made immediately after the general recruitment to select and appoint qualified candidates from among the persons belonging to these communities to fill such reserved vacancies. In view of the above, it is clear that the unfilled posts earmarked for a particular category viz., women of S.C./S.T./B.C. or women of O.C., have to be filled by way of a limited recruitment and even after the limited recruitment, such candidates are not available, then all those vacancies can be filled by candidates selected on the basis of Open Competition, and after filling up the said vacancies in the Open Competition, such of those vacancies filled with Open Competition may have to be filled up along with the posts fallen subsequently in the next recruitment. Therefore, we are unable to accept the contention of the learned Government Pleader appearing for the petitioners that the unfilled posts of women candidates of various categories of S.Cs., S.Ts., and B.Cs., have to be filled by Open Competition-Women alone, under Rule 22 (2) (g) (I), and, as such, any notification issued by the Government, contrary to the said statutory Rule, will not have any overriding effect. A perusal of the impugned order would go to show that during pendency of the O.A., the Tribunal directed to reserve two vacancies and, in fact, in the counter also the Government also accepted that two vacancies are kept vacant as per the interim orders of the Tribunal, and, therefore, the Tribunal, by the impugned order dated 20.07.2006, disposed of the O.A. as stated supra. Further, in view of averment made in the counter filed before the Tribunal that two vacancies have been kept vacant, we are of the opinion that the contention of the learned Government Pleader that the selected candidates have not been made party has no substance. In view of the aforesaid facts and circumstances of the case, we are of the opinion that the Tribunal, after considering the entire material available on record, has rightly disposed of the O.A. Therefore, we do not find any illegality or irregularity in the order passed by the Tribunal so as to call for interference by this Court under Article 226 of the Constitution of India. Accordingly, the writ petition is dismissed. No order as to costs. ______________ V.ESWARAIAH,J ____________________ VILAS V.AFZULPURKAR,J 15.09.2009 Note: Furnish CC in one week B/o v v