*THE HON'BLE SRI JUSTICE P.S.NARAYANA +W.P.No.24187 of 2007 % 21-01-2008 # Ch.Shankar Rao. .. Petitioner Vs. $ The Government of A.P. and others. .. Respondents <GIST: >HEAD NOTE: ! Counsel for petitioner : Sri K.S.Murthy ^ Counsel for respondents 1 to 4 : Government Pleader for Civil Supplies Counsel for respondent No.5 : Sri A.Rama Rao ? CASES REFERRED : 1. (2007) 3 Supreme Court Cases 102 2. (1983) 4 Supreme Court Cases 339 THE HONOURABLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.24187 of 2007 Between: Ch.Shankar Rao. .. PETITIONER and The Government of A.P. and others. .. RESPONDENTS l THE HONOURABLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.24187 of 2007 ORDER: 1. This court ordered notice before admission on 15-11-2007 and issued Rule Nisi on 13-12-2007. Counter affidavits are filed. 2. Sri Ch.Shankar Rao-writ petitioner filed the present writ petition praying for a Writ of Mandamus declaring the action of the respondents in conducting written examination while appointing a dealer for Fair Price Shop in Kotari Village, Ichapuram Mandal, Srikakulam District, as arbitrary, illegal and unconstitutional and consequently to direct the respondents to conduct interview only as per rules, while setting aside the selection process taken on 07-11-2007 by respondent No.4, culminating in the selection of respondent No.5 as dealer of Fair Price Shop, Kotari Village with consequential effect of setting aside the proceedings Rc.No.1317/2007 A, dated 08-11-2007 by the 4th respondent and pass such other suitable orders. 3. Sri K.S.Murthy, learned counsel representing the writ petitioner had taken this court through the contents of the affidavit filed in support of the writ petition, the contents of the counter affidavits filed by respondents 4 and 5 as well and also had drawn the attention of this Court to the relevant portion of G.O.Ms.No.53, dated 06-10-2003 and would maintain that when the rules governing the field do not contemplate conducting written examination, the very selection process is vitiated, since it is not in controversy at all that written examination had been conducted and marks had also be taken into consideration in the selection process and hence, the impugned selection cannot be sustained and the same is liable to be quashed and if necessary the vacancy to be notified again. 4. Per contra, learned Government Pleader for Civil Supplies had taken this court through the contents of the counter affidavit of the 4th respondent and would maintain that it is not the case of the petitioner that when merits and demerits are considered, the petitioner would stand on a higher footing. Further, the learned Government Pleader for Civil Supplies would contend that this is not a case where any written examination pattern had been adopted. But, however, the Appointing Authority in its discretion had followed a particular procedure and this procedure being within the discretion of the Appointing Authority, it cannot be said that merely because the Appointing Authority had adopted such procedure, the selection process is vitiated. Learned Government Pleader for Civil Supplies also would contend that it is no doubt true that G.O.Ms.No.53 does not specifically refer for conducting written examination, but, here is a case where the writ petitioner along with the 5th respondent had participated and also had taken up the written examination and after completion of the selection process, being unsuccessful, he is now questioning the very selection process on the ground that the procedure adopted by the Appointing Authority is bad in law. Learned Government Pleader for Civil Supplies also would contend that a person like the writ petitioner, who had participated in the selection process and on meeting failure, he is in a way estopped from questioning the same by filing the present writ petition. Even otherwise, it is no doubt, on merits, the 5th respondent is definitely more meritorious candidate than the petitioner and no prejudice is caused to the petitioner and hence in any view of the matter, the writ petition is devoid of merit and the same is liable to be dismissed. 5. Learned Government Pleader for Civil Supplies had also placed strong reliance on certain decisions of the Apex Court to substantiate his submissions. 6. Sri A.Rama Rao, learned counsel representing the 5th respondent had taken this court through the contents of the counter affidavit filed by the 5th respondent and would maintain that when merits and demerits of the candidates to be considered, there cannot be any doubt or controversy that the 5th respondent is meritorious when compared to the petitioner. When that being so, even if the marks of the written examination to be taken into consideration or not, even otherwise also, since the 5th respondent is meritorious, the petitioner has no right to question the same. Further, the counsel would contend that the writ petitioner, who had participated in the written examination and in the entire selection process and having been unsuccessful, is now coming before this court complaining that because of conducting written examination, the selection process is vitiated. This stand cannot be said to be a justifiable stand or a bonafide stand and hence the petitioner cannot be permitted to raise such a ground and therefore, the writ petition is liable to be dismissed. 7. The counsel had also placed reliance on certain decisions. 8. Heard the learned counsel and perused the material available on record. 9. At the outset, it may be appropriate to have a glance at the relevant portion of G.O.Ms.No.53, Consumer Affairs, Food and Civil Supplies Department, dated 06-10-2003. Clause 2 deals with interview letters and selection, which reads as hereunder: “After receipt of applications, the Appointing Authority shall cause service of letters calling upon all the eligible applicants for an interview duly indicating the date and time and venue of interviews. Selection shall be made on the basis of interviews conducted by the Appointing Authority purely on merit to be determined on the basis of the minimum general educational qualifications of the candidates. No waiting list of eligible candidates shall be maintained.” 10. It is stated that the petitioner passed 10th class and he is an agriculturist. The petitioner is a resident of Kotari village being native of the same village. The petitioner is having requisite financial capacity and all other qualifications for being appointed as Fair Price Shop Dealer. It is also his case that in the last week of October, 2007, a notice was exhibited in the office of the Mandal Revenue Officer, calling for applications from the eligible candidates to appear for interview for selecting Fair Price Shop Dealer in the open category for Kotari village. 11. It is further stated that interviews were conducted on 07-11-2007 at 10.00 a.m. and there were 7 candidates who appeared for the interview. Respondent No.5 herein is a Graduate and is employed at Visakhapatnam in the teaching cadre in a private school. While conducting interview, to his surprise and shock, respondent No.4 gave a question paper and asked to write the examination. It was for 25 marks. Such a test was unheard of in the history of the District while allotting the dealership of Fair Price Shop. The petitioner was shocked as he was just a 10th class pass candidate and the questions included about Vitamins, which are helpful for eyes; when does the leap year comes; what is the population of India and what are the different types of Ration Cards and what are the benefits for each type of Ration Card. 12. It is further stated that some of the questions were regarding mathematical equations and science questions of advance stage like chemical combinations, components and equation of elements in common salt etc. Further, it is his case that a person, who had just passed 10th class that too, in the year 1987, and since then working as an agriculturist, will certainly be unable to answer such questions after 20 long years. Therefore, the petitioner protested against this method of selection. It is also pertinent to mention that there was no interview followed by the written test. By 12 noon, the examination was over and by 3.00 p.m., on the same day, the name of the 5th respondent was exhibited on the notice board as a selected candidate for allotment of Fair Price Shop. This action of the 4th respondent is illegal and arbitrary. 13. It is further stated that aggrieved by the procedure adopted by the 4th respondent for selection of the Fair Price Shop dealer, he made representations to the Authorities in this regard complaining that the written examination should not have been conducted in the fashion it was conducted by the 4th respondent. The standard of questions were put in such a way to facilitate the selection of the 5th respondent, who himself is a teacher at Visakhapatnam. Therefore, such process of conducting written examination is nothing but a predetermined conspiracy to allot the dealership of the Fair Price Shop of his village to the 5th respondent. The action of the 4th respondent is arbitrary, illegal and violative of Articles 14, 16 and 21 of the Constitution of India. Several other facts had also been averred in the affidavit filed in support of the writ petition. 14. In the counter affidavit filed on behalf of the 4th respondent, in reply to paras 2 to 4 of the affidavit filed in support of the writ petition, it is stated that a notification had been issued to fill up the vacancy of Fair Price Shop Dealer, Kotari Village, Ichapuram Mandal, Srikakulam District, on regular basis calling for applications from O.C (All) category applicants. In response to the notification, seven applications were received. Examination and interview was conducted on 07-11-2007. The applicants attended the test and marks secured are as hereunder: Sl. No. Name / Address of the applicant Caste Date of Birth Educational Qualification Marks for which examination Know- ledge in CS and general matters Marks obtained 1. Lakkoji Krishnarao S/o.Chiranjeevulu, Kotari village B.C. 14.6.81 B.A. 50 Marks 40 Marks 2. Ginni Adinarayana S/o.Domburu Kotari Village B.C. 15.6.77 S.S.C. 50 Marks 38 Marks 3. Chatla Sankara Rao S/o.Dharmaraju, Kotari Village B.C. 5.6.70 S.S.C. 50 Marks 34 Marks 4. Lakkoji Ravi Kumar S/o.Chiranjeevulu Kotari Village B.C. 25.8.77 Intermediate 50 Marks 32 Marks 5. Bangari Krishnaveni, W/o.Janakiram Pattiriputtuga Village B.C. 1.6.83 Intermediate 50 Marks 26 Marks 6. Dadda Parvathi, D/o.late Bairagi Kotari Village S.C. 2.2.71 S.S.C. 50 Marks 19 Marks 7. Panapana Parvathi, W/o.Babaiah, Poornatakam Village B.C. 10.2.89 S.S.C. 50 Marks 16 Marks 15. It is further stated that a formal questionnaire was issued to all the candidates in regard to the relevant Civil Supplies subject and on other simple general knowledge and also human health. The test is very logical manner. But, the petitioner had not answered well. There is another candidate at Sl.No.2 who got higher marks than the petitioner and who had not objected and filed any objections regarding selection of applicant (Respondent No.5) for appointment of Fair Price Shop dealer. The contention of the petitioner is not tenable regarding conducting examination and interview on 07-11-2007. The allegations levelled against the selected candidate Sri L.Krishna Rao by the writ petitioner that he is working as Teacher in a private school is also not true and correct. The selection was made in accordance with the rules in vogue. In later stage if the selected candidate proved to be ineligible, in any case, the selection would be made in favour of next candidate, who secured higher marks but not to the petitioner. The manner in which the selection was made is most logical, within the ambit of competence but not biased and unjustified manner. The test and interview that was conducted mostly relates to the simple subject matter and general information. 16. It is further stated that in reply to paras 5 to 7, it is stated that the petitioner had been there at Sub-Collector’s office, Tekkali by 10-00 a.m. on 07-11-2007 to attend the examination and interview for selection of Fair Price Shop dealer, Kotari village of Ichapuram Mandal along with six other candidates. It had been announced that test will be conducted by 12.00 noon on 07-11-2007 and directed all the seven applicants to be prepared to attend the examination, which is scheduled to be conducted by 12.00 noon on 07- 11-2007. Accordingly, all the applicants attended to the test without any resistance or objection regarding mode of conducting examination. The Examination conducted on 07-11-2007 was on purely on Civil Supplies matters mingling with simple general knowledge within the standard of S.S.C. examination, which is the minimum requisite qualification. The petitioner never objected or filed any objection petition during the course of conducting the test and interview on 07-11-2007. The 5th respondent had been selected as Fair Price Shop dealer, Kotari village purely on merit basis as he had answered well and got highest marks in the interview. Further, respondent No.5 had got 349/600 in S.S.C., whereas petitioner secured only 257/600. Hence, the writ petitioner cannot have any grievance even on this ground. The selected respondent had paid trade deposit of Rs.3,000/- and K.Oil license fee etc., as prescribed by the Civil Supplies Rules for issuance of authorization on 13-11-2007. 17. It is further stated that in reply to paras 8 to 10, it is stated that while following the selection procedure of Fair Price Shop Dealer, the respondents had not violated any constitutional provisions or principles of natural justice. The affidavit filed in support of the writ petition does not disclose any substance warranting interference of this Court under Article 226 of the Constitution of India. It is stated that the mode of conducting examination and procedure followed in the selection of respondent No.5 as Fair Price Shop Dealer, Kotari Village of Ichapuram Mandal are as per the norms. It is also stated that on 07-11-2007, examination was conducted at 12.00 noon to 21 applicants including the petitioner for selection of five Fair Price Shop Dealers in the following villages: 1. Kotari Ichapuram Mandal 2. Sasanam Ichapuram Mandal 3. Pattupuram Kotabomali Mandal 4. Tammayyapeta Jalumuru Mandal 5. Mandasa No.6 F.P.Shop Mandasa Mandal 18. It is further stated that all had attended to the test with zeal and enthusiasm and no individual had filed any objections or felt dissatisfaction about the manner of conducting examination for selection of candidates as Fair Price Shop dealers. It is stated that in terms of rules, merit has been taken into consideration by the Appointing Authority. The person selected is found more meritorious than the petitioner. It is further stated that there is no prohibition of conducting a written test under the rules. Even otherwise, now the petitioner cannot have any grievance when he had not objected to the said test and who had voluntarily participated. Further, the petitioner had already stated that he had got less marks in the S.S.C. examination when compared to the 5th respondent. In such circumstances, it is stated that the writ petitioner is not entitled to any of the reliefs as prayed for. 19. In the counter affidavit filed by the 5th respondent almost similar averments were made and specific stand had been taken that the 5th respondent had secured higher marks than other candidates and hence he was selected and the 4th respondent through his proceedings Rc.No.1317/2007 A, dated 18-11-2007, appointed him as Fair Price Shop Dealer and directed him to remit Rs.3,000/- towards trade deposit and further directed to submit proposal through Tahsildar for sanction of authorization. As per the directions of the 4th respondent, he had deposited the trade deposit and Rs.500/- towards licence fee. 20. It is further stated that the District Supply Officer released the stock and he had distributed the essential commodities to the card holders. It is also stated that the questions, which were given, were simple in nature and the persons, who appeared for interview, answered the questions in writing. 21. It is no doubt true that G.O.Ms.No.53, specified supra, does not contemplate conducting written examination as such, however, the 4th respondent appears to have adopted a simple procedure of giving certain questions inviting certain answers. It is made clear that when the clause of the G.O., which already had been specified supra, does not empower the Appointing Authority to conduct written examination, such procedure not to be followed. However, the question here is whether on such a ground, the selection of the 5th respondent is to be set aside. 22. Learned Government Pleader for Civil Supplies would maintain that the term or expression ‘interview’ may even include conducting written examination. 23. This court is of the considered opinion that instead of giving such broad interpretation or broad meaning, it would be advisable, if G.O. is suitably amended. Further, this court is not inclined to express any opinion relating to this aspect of the matter. It is not the case of the petitioner that he is more meritorious when compared to the 5th respondent. The petitioner is challenging the process of selection mainly on the ground that the Appointing Authority, which is not expected to conduct written examination, since it had conducted and it had taken such marks also into consideration, the whole selection process is totally vitiated and hence the appointment of the 5th respondent is liable to be quashed. This submission of Sri K.S.Murthy prima facie though appears to be attractive, this court is not inclined to accept for the under noted reasons. 24. The Apex Court in INDERJEET KHURANA Vs. STATE OF HARYANA AND OTHERS[1] held : “….. In the absence of the Rules prescribing any method of recruitment, the appointing authority was at liberty to follow any reasonable and appropriate procedure for selection. In this case, the selection was made purely on the basis of merit. The procedure adopted for assessing the inter se merit on the basis of five years’ ACRs and interview (set out in para 6 above) in reasonable and does not suffer from any infirmity, as rightly held by the High Court…..” 25. Further, reliance had also placed on the decision of the Apex Court in SUMAN GUPTA AND OTHERS Vs. STATE OF J AND K AND OTHERS[2]. 26. Sri K.S.Murthy made certain submissions distinguishing these decisions on facts. Here is a case, where the writ petitioner though says that he had lodged a protest at the time of written examination, it is not in controversy that the petitioner also participated in the selection process till the logical end and having been unsuccessful, thought of approaching this court by filing the present writ petition. 27. Though this court is of the opinion that the procedure adopted by the Appointing Authority in conducting examination may not be in consonance with G.O.Ms.No.53, referred to supra, in the light of the factual situation, this court is not inclined to disturb the said appointment. 28. Accordingly, the writ petition is dismissed. No costs. ___________ 21-01-2008 Note: Registry is directed to mark copies to the Chief Secretary as well as the Commissioner of Civil Supplies. (B/o) Prv [1] (2007) 3 Supreme Court Cases 102 [2] (1983) 4 Supreme Court Cases 339