IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU W.P.No.155 OF 2011 Date:20.07. 2011 Between:- Jakkula Srinivas and others. .. Petitioners And Tirumala Tirupati Devasthanams, rep.by its Executive Officer, Tirupathi and another. .. Respondents ORDER: This writ petition is filed seeking to issue a writ of Mandamus declaring Proceedings Roc.No.E10/9051/2008, dated 04.01.2011, of respondent No.1 dispensing with the services of petitioner Nos.1 to 10 as Junior Assistants in Tirumala Tirupathi Devasthanams as illegal and arbitrary and consequently, direct the respondents to continue the petitioners as Junior Assistants on the basis of their selection and appointment on 25.01.2009 on regular basis by quashing the impugned proceedings. 2. The brief facts that are necessary for the disposal of the present writ petition may be stated as follows:- The respondent Tirumala Tirupati Devasthanam (for short, ‘Devasthanam’) advertised in News Papers on 26.03.2008 calling for applications from eligible candidates for filling up of Back Log posts of 15 Schedule Caste, 8 Schedule Caste (Women) category, 7 Schedule Tribe and 3 Schedule Tribe (Women) category to the posts of Junior Assistants. The notification mentioned that educational qualification for the said posts was degree from recognized University and the age prescribed for BC, SC, ST categories was 39 years. It did not mention about the method of recruitment. The petitioners belong to Schedule Caste and Schedule Tribe categories. As the petitioners were eligible for appointment as notified, they applied for the said posts and submitted the bio-data including their age, educational qualifications, technical qualifications, list of marks, experience and caste etc along with their applications. The respondent Devasthanam administration constituted selection committee with Special Grade Deputy Executive Officer, Chief Accounts Officer and Deputy Executive Officer (Local temples) for selecting suitable candidates. It sent the merit list to the Executive Officer with recommendation for appointment of petitioners as Junior Assistants. All the petitioners were appointed as Junior Assistants in Roster Points 7/6, 33/5, 41/5, 33/6, 52/5, 62/5, 83/5 and 16/6 respectively, vide proceedings, dated 23.01.2009 and 25.01.2009 and posted at different places, and they are working there as such. Some of them left their previous jobs due to this appointment. They are fully qualified and eligible to be appointed to backlog posts of Junior Assistants of SC/ST category. Their appointment was in accordance with the rules. Their certificates were scrutinized by the respondent officers before appointment. There was no complaint against them in discharge of their duties. They have put up two years’ of service by January, 2011. The E.O. has also sent a circular, dated 24.07.2010, for regularization of their services. While so, respondent No.1 issued show cause notice, dated 10.03.2010, to them calling for objections as to why their services should not be dispensed with, stating that while verifying selection process, the appointing Authority found that there were some lapses in the selection process regarding roster points earmarked to the categories i.e., female and general; that the appointments were not made strictly as per the merit list basing on marks secured by the candidates in female and general categories, and so, in order to rectify the bona fide mistake, respondent No.1 issued the show cause notice. Then the petitioners requested respondent No.1 through letters to furnish certain particulars and documents before submitting reply to the show cause notice. Instead, the respondents have issued the impugned proceedings dispensing with the services of the petitioners. However, sensing that the respondents are bent upon terminating the services of the petitioners, they approached this Court and filed W.P.No.9379 of 2010 in which interim stay was granted initially. However, one M. Padma, who was impleaded in the said Writ Petition, filed a petition in the very same Writ Petition seeking a direction to the respondents to give appointment to her in the respondent-Devasthanam, since she secured 75.3% marks in the degree and that the candidates, who have secured lesser marks than her, were appointed ignoring her. She further stated that on her representation, the respondents have verified the selection process made in the year 2008 and found certain irregularities in the selection process and accordingly, issued show cause notice, dated 10.03.2010, to the petitioners. But subsequently, the said Writ Petition by order, dated 25.10.2010, was dismissed observing that it is only an apprehension of the petitioners that the respondents may terminate them. However, respondent No.1 issued the impugned proceedings terminating them from the services of Devasthanam by 06.01.2011. Hence the present Writ Petition. 3. A detailed counter has been filed by the respondents denying the averments made in the writ petition. It is stated that the petitioner herein filed a writ petition challenging the show cause notice, dated 11.03.2010, but it was dismissed on 24.10.2010, with a direction that the order passed by the respondent Devasthanam shall not be implemented for a period of one week from the date of passing of the order. On verification, it is noticed that the appointment orders issued to the petitioners were not on merit list basis, and so, the lapses noticed in the selection process were rectified by issuing proceedings, dated 04.01.2011. No illegality or irregularity has been committed by the respondent Devasthanam in dispensing with the services of the petitioner. The petitioners were temporarily appointed as Junior Assistants and the order of appointment itself contains the clause of termination without any prior notice and without assigning any reasons. There was no proposal for regularization of services of the petitioners. The petitioners have no legal or vested rights to continue in employment, when it is found to be not in order. The reason for issuance of show cause notice is only to rectify the bona fide mistake of not following the rules by the selection committee and to legalise the merit list. The respondent Devasthanam issued show cause notice to all the petitioners giving reasons with details and hence, the respondent Devasthanam did not violate any provisions of law and the notices issued are legal and valid. Basing on the recommendations of the selection committee with reference to merit list, the respondent Devasthanam issued temporary appointment orders. When the bona fide mistake was brought to the notice of respondent Devasthanam in selecting the less merit candidates, who were appointed for the posts in the back-log vacancies, the respondent Devasthanam prepared corrected merit list. The vacancies are back log vacancies and the Government waived the written test in the selection of SC/ST backlog vacancies. So, the question of conducting interviews does not arise. Though opportunity was given to the petitioners, they failed to substantiate their claims. The merit list prepared by the respondent Devasthanam is in accordance with the rules of reservations. The Selection Committee has selected only male candidate in SC and ST categories instead of actual merit list clubbed with male and female, which resulted in the denial of employment of merit women candidates and when the bona fide mistake came to the notice of respondent Devasthanams, show cause notices were issued to the petitioners. While preparing the selection list of the candidates, the marks obtained in the degree certificates were taken into consideration. Even the women candidates, who secured higher marks in the degree, are entitled to be considered on merit among the S.C. candidates. The general categories are filled with only male candidates excluding women categories, since the Selection Committee might have felt that women categories are notified separately and the women candidates have to be filled in that category only. As per the Andhra Pradesh State and Subordinate Services Rules, 1996 (for short, ‘the Rules’), women reservation was 33 1/3% only and the remaining are treated as common category. The reservation category has not exceeded 33 1/3 %. If any woman candidate is selected in general category, it will not come under women reservation. So, the order passed by the respondent Devasthanam dispensing the services of the petitioners is legal and valid. 4. A reply affidavit has been filed by the petitioners contending that the lapses noticed in the selection process were rectified by issuing proceedings, dated 04.01.2011. Who verified the selection process and when it was verified and what were the lapses in the selection process are not disclosed. The selection was made by duly constituting selection committee, who are aware of the rules and regulations of TTD. The T.T.D. and Executive Officer are Public Authorities and they are expected to act reasonably in accordance with the rules and it does not give them authority to terminate the services at their whims and fancies. The respondent Devasthanam administration is not competent to prepare another merit list, after the merit list of the selection committee was implemented and acted upon. The denial of the respondents about the proposal for regularization of services of the petitioners is wholly mischievous. The Executive Officer is not competent to prepare another merit list after the selection process was over and he is not competent to revise the selection list six months after its finalization. The selection of the candidates with maximum marks will not govern the backlog posts and when there is horizontal reservation. The procedure of selecting candidates on the basis of marks in the degree without reference to other qualifications and without ascertaining the suitability of the candidates is illegal and arbitrary. The petitioners are better qualified as they have Post Graduate and M.C.A. degrees and there is no reason to interfere with the selection process. The preference to women shall not result in exclusion of men in any category of posts. The revised selection process results in getting women candidates for more than 33 1/3 % to which they are eligible. The contention that general categories were filled only with male candidates excluding women category is absolutely wrong. Women candidates were selected in the 7 posts of SC candidates and 3 posts in ST category as per their notification. There are enough vacant posts to accommodate women candidates if the respondent Devasthanam wants to appoint them. For that purpose, the appointment of the petitioners need not be cancelled. 5. Learned counsel for the petitioners contended that for the mistake committed by the Selection Committee of the respondent Devasthanam, the petitioners cannot be made to suffer; that having selected the petitioners by duly constituting a Selection Committee and after the petitioners served for more than one year, the respondent Devasthanam is estopped from contending that a bona fide mistake crept in during the selection process; that the respondent Devasthanam violated Rule 24 (c) of the Rules; that none of the candidates, who secured more marks, approached this Court to challenge the selection process; that within the reservation, the horizontal reservation has to be followed; and that therefore, he prays to set aside the impugned order. 6. On the other hand, learned Standing Counsel appearing for the respondent Devasthanam contended that in the show cause notice and also in the impugned order, the list of marks secured by the candidates appeared for interview have been specifically stated and the same has not been denied or disputed by the petitioners; that basing on the complaint that the Selection Committee committed a grave irregularity in selecting the petitioners, who secured less marks, it is found on verification that the merit has been completely ignored by the Selection Committee and so the petitioners have no legal right to continue in the post when their appointments are irregular. 7. The factual matrix is not in dispute. When the respondent Devasthanam notified backlog vacancies of the post of Junior Assistant, the petitioners have participated in the selection process which is for selecting the candidates by duly constituted selection committee. In pursuance of the recommendations made by the Selection Committee, the petitioners were appointed. After completion of one year, along with some other employees, the respondent Devasthanam made a proposal for regularization of their services. Article 16(1) of the Constitution of India reads that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. It is not in dispute that respondent – Devasthanam is a state within the meaning of Article 29 of the Constitution. The guarantee in clause (1) is violated only when discrimination or preference is made between persons belonging to the same class. There cannot be any dispute that for any selection committee of any recruitment, in selecting the candidates, merit shall be the criteria for giving appointments. Under no circumstances, merit should be ignored or by-passed. In the show cause notice as well as in the impugned order, the percentage of marks obtained by the persons under S.C. Category, S.C.Women Category, S.T. Category, S.T. Women Category was furnished which reads as follows:- S.No. N a m e of the Candidate Percentage of Marks S.C.Category 1 K.Madhavi 85.5 2 P.Kiranmai 84.6 3 T.Seenaiah 83.0 4 P.Kiranmai 82.4 5 E.Babu 81.4 6 R.Venugopal 81.1 7 J.Siva Prasad 79.8 8 K.Sowjanya 79.7 9 N.Divya 79.1 10 K.Archana 79.0 11. M.Jaya Kumar 78.5 12. P.Jothirmai 78.3 13 C.Suresh Babu 77.1 14 D.Charan Kumar 77.0 15 J.Sreelakshmi 76.9 S.C. (Women) Category 1 M.Padma 75.3 2 J.Kalpana 75.1 3 Y.Bharathi 73.1 4 Y.Sumathi 73.1 5 V.Praveena 73.1 6 M.Rajeswari 73.0 7 K.Hemalatha 72.9 8 N.S.Meera 72.8 S.T.Category 1 A.Indira 78.7 2 B.Jayavani 75.9 3 M.Damodhar Naik 75.6 4 I.Aruna 75.1 5 B.Chaitanya 74.6 6 B.Chandrasekhar Naik 74.5 7 B.Sudharani 74.4 S.T.Women 1 V.Sreevani 72.5 2 M.Kegia 72.3 3 B.Nagalakshumma 72.1 1st petitioner (SC category) has secured 73.30 marks. 2nd petitioner (ST category) has secured 73.50 marks. 3rd petitioner (SC category) has secured 73.50 marks. 4th petitioner (ST category) has secured 69.20 marks. 5th petitioner (SC category) has secured 73.30 marks. 6th petitioner (SC category) has secured 72.50 marks. 7th petitioner (ST category) has secured 70.20 marks. 8th petitioner (SC category) has secured 73.30 marks. 9th petitioner (ST category) has secured 69.30 marks and 10th petitioner (ST category) has secured 70.30 marks. When the marks secured by each of the petitioners is compared with marks secured by other candidates in the above list in the order of merit, it is very clear that merit has been ignored totally. In the same notice, marks secured by the petitioners under S.C./S.T. Category have been furnished. All the petitioners secured less than 73.50 marks. The other candidates under S.C. Category, S.C. Women Category, S.T. Category and S.T. Women Category secured more marks than the petitioners. It is not in dispute that the degree recognized by any University is the basic qualification for the appointment. The Selection Committee completely ignored the merit for the reasons best known to it. It has selected the persons, who secured far lesser marks than the candidates, who secured higher marks. That illegality committed by the Selection Committee has to be rectified. That is the reason why when it came to the notice of the respondent Devasthanam, it has rightly issued the show cause notice calling for explanation for which, the petitioners gave an explanation. In the explanation also, the petitioners have not denied about securing of more marks than the petitioners by the other candidates. When there is an illegality committed by the Selection Committee, the principle of estoppel has no application. No doubt, there is no mistake on the part of the petitioners in getting the appointments nor they played any fraud on the Selection Committee in that process. But a grave mistake was committed by the Selection Committee in selecting the persons, who secured less marks than the marks secured by other candidates. Therefore, the contention of the learned counsel for the petitioners that the respondent Devasthanam is estopped from issuing the impugned proceedings cannot be accepted. It is wholly devoid of merit and untenable. Learned counsel for the petitioners placed a strong reliance on a decision of the Hon’ble Supreme Court reported in Public Service Commissioner, Uttaranchal v. Mamta Bisht and others[1] wherein the judgment of the Hon’ble Supreme Court in A.I.R.2007 SC 3127 was referred to as hereunder:- “The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are “vertical reservations”. Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are “horizontal reservations”. Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, R.K. Sabharwal v. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr.Y.L. Yamul.) But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of “Scheduled Caste women”. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.” From the above decision, it is clear that when a special reservation for women is provided, within the social reservation for schedule castes, the proper procedure is to first fill up the quota for schedule castes in the order of merit and find out the number of candidates among them, who belong to the group of S.C. Women. Therefore, the above decision would clearly go to show that in the first instance, the merit should be taken into consideration even if a special reservation for women is provided. Therefore, the above decision is not helpable to the case of the petitioners. The learned counsel for the petitioners also relied upon a decision of this Court reported in K.Venkatesh and another v. Government of Andhra Pradesh, Home (Courts.C1) Department and others[2], whereunder Rajesh Kumar Daria’s case has been followed. The learned counsel for the petitioners has brought to the notice of this Court about Rule 24 of the Andhra Pradesh State and Subordinate Service Rules, 1996. Rule 24 of the said Rules reads as follows: “Revision of lists of approved candidates (panels) or list of eligible candidates for appointment by promotion or by transfer:- (a) The State Government shall have the power to revise in any manner they consider suitable, any panel of approved candidates for appointment by transfer or by promotion to any category, class or service, prepared by a head of the department or any other authority subordinate to the head of the department, in exercise of the powers conferred on them by the special rules or these rules: Provided that before revision of the panel is undertaken the cases for review should be placed before the D.P.C./Review D.P.C./Screening Committee and their recommendations obtained; Provided that where the panel is prepared by an authority subordinate to a head of the department, in exercise of the powers conferred on him by the special rules, the aforesaid power of revision may be exercised by the head of the department. This will not preclude the State Government from exercising the powers of the revision aforesaid, against the orders either of the head of the department or of any other subordinate authority aforesaid. (b) The State Government and the head of the department shall have power to revise in any manner they consider suitable, any list of eligible candidates for promotion to any category, class or service in respect of the subordinate service, prepared in accordance with Rule 5. The aforesaid power of revision by the State Government could be exercised by them in respect of an order passed by the head of the department or by any other subordinate authority. (c) The aforesaid power or revision mentioned in sub- rule (a) and sub-rule (b), may be exercised by the State Government or by the head of the department on their own motion, at any time, or on an application made by the aggrieved person, within a period of six months from the date of the order of appointment or promotion of a person junior to the aggrieved person: Provided that the time limit of six months aforesaid may, for good and sufficient reasons to be recorded in writing, be waived by the State Government; Provided further where the panel referred to in sub- rule (a) has been partially utilized, any order of revision likely to affect a person who has already been appointed from such panel, shall be given an opportunity of making his representation against the proposed revision, before any order of revision is passed; Provided also that if any revision of list of eligible candidates mentioned in sub-rule (b) is likely to affect a person already promoted from the aforesaid list of eligible candidates, he shall be given an opportunity of making a representation against the proposed revision before any order of revision is passed: Provided also that where a panel has been prepared on the basis of the recommendations made by a DPC/Screening Committee any revision of such panel shall be made only after consultation with such D.P.C./Screening Committee.” The rule provides that State Government or Head of the Department has power to revise the panel of approved candidates for appointment by transfer or by promotion. But the above decision has no application to the case of fresh recruits. It is only applicable to the candidates for appointment by transfer or by promotion to any category class or service prepared by Head of the Department. It is not the case where the petitioners were appointed by transfer or by promotion. Selection based on merit, tested impartially and objectively is the essential foundation of any useful and efficient public service. There cannot be any dispute that selection connotes judging of merit suitability. The selection committee cannot act arbitrarily. It is only if the assessment is patently arbitrary or the risk of arbitrariness is so high that a reasonable person would regard arbitrariness as inevitable, that the selection of candidates who secured less marks be regarded as suffering from the vice of arbitrariness. When the illegality has come to the knowledge of the respondent Devasthanam, it has rightly followed the principles of natural justice by giving a show cause notice and thereafter, passed the impugned order. As seen from the impugned order, the Selection Committee has totally ignored the merit and selected the candidates, who secured far lesser marks than the meritorious candidates. It is immaterial as to whether the persons, who secured more marks, have approached this Court or not. Once the illegality has come to the notice, it cannot be allowed to perpetuate. Therefore, the impugned proceedings are passed in accordance with the rules and therefore, it needs no interference by this Court. The petition is devoid of merit and is liable to be dismissed. 8. The Writ Petition is dismissed. There shall be no order as to costs. ______________________ JUSTICE K.C.BHANU 20th July, 2011. AMD THE HON'BLE SRI JUSTICE K.C.BHANU W.P.No.155 OF 2011 Date:20.07.2011 AMD [1] 2010 (5) SCJ 339 [2] 2009 (6) ALT