IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY NINTH DAY OF JUNE TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU WRIT PETITION NO. 12700 of 2010 Between: D.Prakash and others. …PETITIONERS AND The English and Foreign Languages University and others. ....RESPONDENTS The Court made the following : THE HON'BLE SRI JUSTICE K.C.BHANU WRIT PETITION NO. 12700 of 2010 O R D E R: This Writ Petition is filed seeking to declare the action of respondent Nos.1 and 2 in issuing Employment Advertisement No.EFL- U/Admn/F.25/2009 (Advertisement No.IV/2009), dated 25.08.2009, in respect of various posts, as arbitrary and illegal and against the guidelines issued by Government of India and University Grants Commission and consequently, to set aside the same. 2. The averments of the affidavit filed in support of the Writ Petition may be stated as follows: The petitioners are working in the first respondent University for more than two decades under various categories such as Section Officers, Senior Assistants, Junior Assistants, Junior Stenographers /Typists, Technical post etc. Respondent No.1 University is initially a deemed University called as Central Institute of English and Foreign Languages ( for short, ‘CIEFL’). The Rules for recruitment of all non- teaching staff of the University were approved by Government of India, Ministry of Education and also Board of CIEFL. Later, by an Act of Parliament i.e., Act No.7 of 2007, the CIEFL has been renamed as the English and Foreign Languages University, (for short, ‘EFLU’) and by an Act called English and Foreign Languages University Act 2006 (for short, ‘the Act’), the said University came into existence and the entire assets and liabilities including the staff working in the erstwhile CIEFL were transferred to the University as per Section 4 of the Act and the petitioners were enjoying the same. As per the recruitment Rules in respect of CIEFL, the non- teaching posts, such as Section Officer, Upper Divisional Clerk, Office Assistant, Accountant etc., shall be filled up only by promotion and there is no procedure contemplated by direct recruitment. The channel of promotions are also given in the recruitment Rules. This is made only to safeguard the interest of employees who have put up not less than 5 years’ of service, so that they might get a chance of promotion in each category. Therefore, all the employees after putting considerable length of service entertained hope to get further promotion. After the Act is passed by the Parliament, as stated above, the EFLU came into existence in January, 2007, and a Vice Chancellor was appointed by the Government of India. Taking charge as Vice Chancellor, respondent No.2 has taken up the task of filling up of all teaching and non-teaching vacant posts in the University and is making appointments at his whims and fancies without following any Rules. Outsiders i.e., persons from other states, are brought and appointed on temporary basis in the posts such as Resident Doctors, Drivers, Nurses, Security Officers etc. Though notification was issued, no test is contemplated for any post and interviews are being conducted for each post starting from 07.06.2010 and it is crystal clear that the persons hailing from Delhi, Uttar Pradesh and other states who are close to respondent No.2 are being considered to be appointed and the advertisement given is only an eye wash to over come the recruitment process and principles of law. The recruitment Rules for the post of non-teaching staff in EFLU are made arbitrarily, totally against the interest of employees and also against guidelines issued by Government of India and also UGC Rules. Even for the post of Senior Assistants i.e., (UDCs) as per old Rule, 75% of the posts are to be filled by promotion i.e., from the feeder categories of L.D.Cs./Typists/Store Clerks etc., and remaining 25% to be filled up on the basis of competitive tests from among the employees, who are in the certain pay scale range. But, as per the present Rules, again direct recruitment was introduced, totally depriving the promotion chances of existing employees and that most astonishing and ever known Age limit was fixed at 45 years. If Age concession is given as per Government guidelines i.e., five years to Schedule Castes Schedule Tribes and Other Backward Classes, the maximum age will be 50 years. If the above Rule is accepted, a person who was recruited will be in service for just 10 years and it is not known how he will serve the University and know the process of administration within such short span of time. Without finalizing recruitment Rules and Rosters meant for Schedule Castes and Schedule Tribes, the notification is issued for filling up number of vacancies, which is totally against the Rules and it also deprives the rights of Schedule Castes and Schedule Tribes. The present process of filling up of the vacancies is totally against Constitutional Mandate, leave alone, guidelines issued by Government of India. Even without taking any exercise of preparing Post Based Roster, respondent No.2 is going ahead with the recruitment process, that too, making direct recruitment to the above said posts arbitrarily and illegally. While the matter stood thus, the impugned notification, dated 25.08.2009 was issued inviting applications from eligible candidates for filling up of various vacancies including posts of Section Officers, Senior Assistants, Stenographers and Office Assistants etc., for which there is no provision for direct recruitment in earlier Rules. The posts have to be filled up by promotion from among the existing employees as per the channel prescribed for the posts on the basis of Seniority-cum- Merit. Therefore, the above action of respondent Nos.1 and 2 in issuing notification for filling up of various posts is totally arbitrary and illegal and against the administrative law. Hence, the Writ Petition. 3. Respondent Nos.1 and 2 filed counter denying the averments in the affidavit filed in support of the Writ Petition and stating that EFLU is a Central University and candidates will apply from different parts of the Country and the Selection Committee will select the candidates based on the merit. The Selection Committee has never taken into consideration any region for making selections. The selections are made unbiased. The University appointed a Committee to review the Recruitment Rules of the erstwhile EFLU, which in turn reviewed the Rules and placed the same before the Executive Council for consideration. The EFLU Recruitment Rules were reviewed with a view to fulfil the constitutional obligations. The Executive Council approved the revised Recruitment Rules on 20.05.2010 by taking into consideration of the grievance of the employees of the University. Since, there was a ban on recruitment, the University has been utilizing the services of contractual employees wherever it is required for the last one decade. The reservations for various categories i.e., SC/ST/OBC/PH/Ex-Servicemen have been taken into account while releasing the Advertisement. The advertisement is evident for compiling the Rules of reservation for different categories and therefore, there will not be any injustice to any category. Respondent No.2 never assured to any of the Association regarding anything. No institution will take the consent of the staff associations for making any recruitment. Recruitments will be made as per Rules in vogue. There is no violation of Articles 14, 16 and 19 of the Constitution of India as the prescribed percentage of posts are reserved for different categories i.e., SC/ST/OBC/PH/Ex-servicemen as per Reservation Rules in the Advertisement No.IV/2009. The notified posts vide Advertisement No.IV/2009 are in accordance with the Rules of Reservations for various categories. The University has taken into cognizance the instructions of the MHRD vide F.No.11014/11/04/CDL, dated 19.07.2004. The Advertisement was released on 25.08.2009. The interviews which were held for the post on 07.06.2010, are covered under essential services and there is no scope for any motives for conducting interviews. As respondent No.2 left the office due to superannuation, the allegations levelled against previous Vice Chancellor by the petitioners have no relevancy at present. Hence, it is prayed to dismiss the petition. 4. A reply affidavit is filed by the petitioners. The averments in the reply affidavit are as follows: The respondents did not explain the reasons for issuing notification when no Rules are framed or adopted for filling up of vacancies in the University. The notification was issued even before the Rules are framed. In fact, the Rules have been adopted in the emergency meeting held on 29.09.2009 by the Executive Committee of the University. Therefore, the notification itself is illegal and has to be set aside. The minutes of the IX meeting of Executive Committee held on 20.05.2010 prove that the minutes are adopted on the above said date. Therefore, any notification issued prior to the said date, is totally null and void and no recruitments can be taken up basing on the illegal notification. In this case the notification issued without showing Post Based Roster as such the above said notification is totally irregular. The Office order No.EFL-U/SC-ST Cell/2011, dated 04.02.2011, clearly shows that till date there is no Post Based Roaster adopted by the University and as such issuance of notification itself is irregular and this fact is also concealed by the University and it is not mentioned anywhere in the counter whether there is any post based roster is being adopted by the respondent University. The University has issued office Note (SC & ST Cell), dated 01.11.2010, preparing Post Based Roster. This itself clearly shows the attitude of University in issuing notification and to make recruitments without following any Rule of Reservation. Therefore, the entire process of issuing Notification and making recruitments hurriedly is against Rules and also Rule of Reservation (Post based) issued by the Government of India. In fact, while preparing recruitment rules, as a principle, the views of all staff associations will be invited and in this case unilaterally the University Authorities have prepared the rules which are totally detrimental to the interest of the staff. 5. Learned counsel for the petitioner contended that even before framing the Recruitment Rules, the impugned advertisement, dated 25.08.2009, has been issued; that the Rules have come into force on 29.09.2009; that prescribing the maximum age limit of 45 years for every post is contrary to the Rules; that no service Rules of the Government prescribe the maximum age limit of 45 years; that if direct recruitment is taken up by the University, further promotion of other petitioners and the employees would be seriously affected and therefore, he prays to quash the Advertisement as it is not in accordance with the Rules. 6. On the other hand, learned Standing Counsel appearing for respondent Nos.1 and 2 contended that by the date of notification, the Vice Chancellor has got every right to exercise any of the powers under the Act; that basing on the nature of the posts which were sanctioned, the respondents have to fill up the posts; that the main grievance of the petitioners is that three months before retirement of the Vice Chancellor, a notification was issued; that now the Vice Chancellor retired from service; that there is no impediment to the University to proceed further in pursuance of the notification and hence, there are absolutely no grounds to warrant interference of this Court. 7. There cannot be any dispute that when a notification was issued, there must be sanctioned posts to fill up. The competent authority shall proceed further in accordance with the Rules or the Guidelines or the resolution passed by the Executive Council of the University. Mainly on two grounds, the notification is under challenge. One of the grounds taken in the Writ Petition is that the head of organization, namely Prof Abhay Mourya, Vice Chancellor shall not conduct or proceed with selection process for the reason he was going to be retired on superannuation within two or three months after issuance of notification. It is not in dispute that the Vice Chancellor against whom some allegations levelled has already retired from service. The other grievance is that the petitioners would not get any promotion, if the posts are filled up by direct recruitment. Learned Standing Counsel appearing for respondent Nos.1 and 2 contended that there are no persons from feeder cadres available so as to give a promotion to the eligible employees. It is a case of respondents that the posts which were notified are very essential services, to be utilized by the University and therefore, the appointing authority has got every right to notify the posts and proceed further in the selection process. 8. Section 13(3) of the English and Foreign Language University Act, 2006, reads as follows: “The Vice-Chancellor may, if he is of opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and shall report to such authority at its next meeting the action taken by him on such matter.” Therefore, the above provision makes it clear that the Vice Chancellor has got every power to take any action on any matter, if necessary, and he can exercise any of the powers conferred under the Act. But, the only rider is that he has to place the decision taken before the Executive Council for approval. The decision taken by the Vice Chancellor to fill up the post by way of direct recruitment has been approved by the Executive Council of the University. Further, the process of direct recruitment will in no manner affect the rights of the petitioners or other employees. It is settled law that once statutory rules have been made, the appointment has to be in accordance with such rules. The Vice Chancellor of University has the power to make recruitments and thereafter appoint administrative personnel under the general power of administration vested in him. It is not obligatory to make rules of recruitment before the posts are filled up. 9. The contention that the future promotions of the petitioners will be affected cannot be a ground to quash the notification, because it is for the University to decide. It is not in dispute that the notified posts have been sanctioned by Government of India. Therefore, when Government of India has taken a decision to sanction certain non-teaching posts against XI Plan by allocation by considering the need of the University, it is for the competent authority to start recruitment process. The petitioners did not specifically state under which recruitment rule or regulation, the terms and conditions laid down in the notification are violated. 10. From the record it is clear that the recruitment rules are framed in the emergency meeting of Executive Counsel held on 29.09.2009. It is not in dispute that rules of recruitment are prepared by duly constituted a committee. Thereupon, the 2nd respondent revised the Recruitment Rules and placed before the Executive Council meeting held on 20.05.2010. The Executive Council approved the revised recruitment rules. Admittedly, the notification is issued on 25.08.2009. The case of the petitioners is that notification issued before framing of recruitment rules is arbitrary. 11. The University Grants Commission while approving non-teaching posts against XI Plan by vallocation inter alia directed the first respondent to frame the cadre recruitment rules for each category of posts before the posts are being filled up and also to follow reservation policy. As seen from the direction given by University Grants Commission, rules of recruitment can be framed before filling up of posts. As seen from the notification the schedule of tests / interviews of various categories of posts were to be commenced from 07.06.2010 and completed by 14.06.2010. The recruitment rules are framed after notification, but well before the schedule of tests/interviews. The rules of recruitment are framed after notification, such an act is inconsonance with the direction of University Grants Commission. 12. With regard to rule of reservation, it is the case of petitioners that roster points meant for scheduled castes and schedule Tribes person have not fixed and post based rosters have to be followed. On the other hand, it is the case of respondents that the required percentage of posts are reserved for Scheduled castes, Scheduled Tribes and Backward Classes and there is no violation of rule of reservation. The rules of recruitment and rules relating to reservation of posts for Scheduled Castes, Scheduled Tribes and Backward Classes have not been challenged in this writ petition, in the absence of such challenge no finding can be given. It is not the case of petitioners that posts reserved for various categories are contrary to the rules. 13. Therefore, there are no grounds to interfere with the impugned notification. The Writ Petition is devoid of merit and is accordingly dismissed, duly vacating the stay granted by this Court on 07.06.2010 in W.P.M.P.No.15983 of 2010. There shall be no order as to costs. _______________ K.C.BHANU, J JUNE 29, 2011 YVL