IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) TUESDAY, THE NINTH DAY OF SEPTEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.20482 of 2013 BETWEEN B. Sandeep Reddy and others.
AND ... PETITIONER A.P. GENCO, Rep. by its Chairman & Managing Director, Vidyuth Soudha, Somajiguda, Khairatabad, Hyderabad and others.
...RESPONDENTS Counsel for the Petitioner: MR. PEETA RAMAN Counsel for the Respondents: MR. C. RAGHU – R1 & R2 GP FOR REVENUE – R3 & R4 MR. K. CHIDAMBARAM – R5 to R10 The Court made the following:
ORDER:
Five petitioners herein question the action of the official respondents 1 to 3 in provisionally selecting respondents 5 to 10 as junior Plant Attendants (JPA) on the basis of selection dated 01.07.2013 displayed on the internet and consequently, the selection of the petitioners denied thereunder is questioned on the ground that it is illegal, discriminatory and arbitrary and opposed to Doctrine of Promissory Estoppel and Doctrine of Legitimate Expectation.
Further, consequential relief is sought to set aside the selection of respondents 5 to 10.
2. Petitioners as well as respondents 5 to 10 are stated to be from the category of land losers viz. whose lands were acquired for the purpose of Power Projects. In lieu thereof under the policy of the Government of Andhra Pradesh vide G.O.Ms.No.98 Irrigation (Projects Wing) Department dated 15.04.1986 as a rehabilitation measure, the respondent – Generation Corporation issued a notification for recruitment of JPA on 05.01.2011. That notification was revised by supplemental notification dated 17.10.2011. The recruitment, in question, is stated to have been held in accordance with the said supplemental notification with respect to the vacancies thereunder.
3. Petitioners state that 50% of the quota of the vacancies is, therefore, required to be filled up from out of the category of land losers. Petitioners state that they made applications for recruitment under the aforesaid scheme by applying to the Superintending Engineer, Nagarjuna Sagar Tail Pond Dam, Satrasala and in turn, the Superintending Engineer sent the list to the fourth respondent.
The names of he petitioners are also said to have been processed and appear in the annexure to the minutes of the District Selection Committee meeting dated 30.04.2013 in terms of G.O.Ms.No.98 dated 15.04.1986, referred to above. It is stated that there are 8 sanctioned posts, which are in the category of 50% of sanctioned posts earmarked for land losers and their dependants, and out of 8, six candidates from Nalgonda District and two candidates from Guntur District are stated to be eligible. Respondents 5 to 10 are stated to have been provisionally selected out of the list of 16 candidates in the land losers category forwarded by the District Collector in terms of G.O.Ms.No.98 dated 15.04.1986. Thus, out of the list of 16 candidates forwarded by the District Collector i.e. Chairman of the Selection Committee, 8 candidates were required to be selected.
4. Petitioners state that the criteria for short listing and selecting respondents 5 to 10, as adopted by respondents 1 and 2, is highly arbitrary and illegal. Petitioners state that the lands acquired from the families of the petitioners are much more than the land acquired from the families of respondents 5 to 10. Petitioners also state that they are more meritorious than respondents 5 to 10, if the qualifying examination is taken into consideration. Petitioners also state that even adopting the age criteria, petitioners are required to be selected rather than respondents 5 to 10. However, the criteria adopted by respondents 1 and 2 in selecting respondents 5 to 10, being without any rationale or basis, is questioned on the ground that it is highly arbitrary and on that ground, the relief, as mentioned above, is sought.
5. Counter affidavit is filed on behalf of respondents 1 to 3 wherein it is stated that while preparing the merit list among the land losers, the date of award with respect to each candidate is taken into consideration and only where the date of award is same, for more than one candidate, the elder of the candidates based on date of birth is preferred. It is stated that date of award is the only rationale method, which is rightly adopted by respondents 1 to 3 for inter se seniority among the land losers category and in view of that, the said criteria is uniformly applied and thereby, respondents 5 to 10 came up for selection and the petitioners could not get selected in view of the limited number of vacancies. It is also stated that adopting the criteria is a policy decision taken by respondents 1 and 2 and the same cannot be called in question.
6. Respondents 5 to 10 also filed counter affidavit stating that the lands of the writ petitioners were acquired for Nagarjuna Sagar Tail Pond Dam and so far as respondents are concerned, they have cooperated with the land acquisition authorities and as such, awards in their case were passed much more earlier than in the case of the families of the petitioners. It is stated that the families of the petitioners are themselves responsible for delay in passing of the awards, as they obstructed the finalization of acquisition proceedings. The date of birth, qualification, date of award and the land lost with reference to petitioners as well as respondents 5 to 10 is set out in the counter in the tabular form and their selection is sought to be justified by contending that there is no illegality in the criteria adopted by APGENCO, as the criteria of date of birth is also envisaged in G.O.Ms.No.98 dated 15.04.1986, referred to above.
7. On 22.07.2013, while issuing notice before admission, this Court directed that recruitment to the posts of JPA in the category of land losers in respect of Nalgonda District shall not be finalized. In view of that, petitions were filed seeking vacation of the interim order by the official respondents 1 to 3 as well as respondents 5 to 10. By orders of the Hon’ble the Chief Justice, this present writ petition was assigned to this Court.
8. I have heard learned counsel for the petitioners, learned standing counsel for respondents 1 to 3 as well as learned counsel appearing for respondents 5 to 10.
9. Mr. Peeta Raman, learned counsel for the petitioners, has strenuously contended by placing reliance upon G.O.Ms.No.98 dated 15.04.1986 as well as the policy of the State in ensuring the benefit of the appointment to the land losers category.
Learned counsel submits that selection under this category has to be treated as special category different from the general recruitment. Learned counsel also stated that if rationale criteria had been adopted by the official respondents, petitioners would have been selected ahead of respondents 5 to 10. Learned counsel also laid much emphasis on the nature of criteria, which is required to be adopted by APGENCO in implementing the land losers category and submitted that though names of the petitioners were in the list of 16 candidates selected by the selection committee, constituted for the purpose of G.O.Ms.No.98 dated 15.04.1986, on account of the defective criteria adopted by APGENCO, petitioners were not selected. Learned counsel, therefore, seeks that a Mandamus, as prayed for, deserves to be issued.
10. Mr. C. Raghu as well as Mr. K. Chidambaram, learned counsel appearing for respondents 1 to 3 and respondents 5 to 10 respectively, have placed reliance on their counter affidavits and have also submitted that the policy decision of APGENCO in applying the selection criteria, having not been questioned by the petitioners, the same is not open to challenge in the present writ petition apart from justifying the selection of respondents 6 to 10 on merits.
11. I had specifically indicated to the learned counsel for the petitioners during the preliminary hearing of this writ petition as well as on a later occasion that the writ petition, being directed only against selection list, no rights in law can be said to have created either in the selectees or in the non- selectees and as such, in my view, there was no cause of action for filing of the writ petition.
12. Elaborate submissions have been made on behalf of the learned counsel for the petitioners and learned counsel for the respondents on that question.
13. In my view, the impugned select list may be a list prepared by respondents 1 to 3 for making appointment of respondents 5 to 10, but as long as the appointments are not made, the selection process, as such, cannot be said to affect the rights of the petitioners.
The select list, in my view, therefore, is in the nature of short listing of candidates for appointment and as and when the appointments are made, the cause of action for non-selectees would arise. At this stage, in my view, therefore, the writ petition is thoroughly premature and the selection list, as such, cannot be subject matter of judicial review when no order of appointment, as such, is made.
14. Mr. K. Chidambaram, learned counsel appearing for respondents 5 to 10, has supported the proposition aforesaid by placing reliance on two decision of the Supreme Court in PITTA NAVEEN KUMAR [1] v. RAJA NARASAIAH ZANGITI a n d S.S. BALU v. STATE OF
[2]
KERALA (particularly para 15) as under:
“15. There is another aspect of the matter which cannot also be lost sight of. A person does not acquire a legal right to be appointed only because his name appears in the select list. [See Pitta Naveen Kumar & Ors. Raja Narasaiah Zangiti & Ors. (2006) 10 SCC 261].”
15. The legal position in this respect is settled by various decisions, referred to in the decisions cited above, of the Supreme Court in
[3]
SHANKARSAN DASH v. UNION OF INDIA (particularly paras 7 and 8
[4]
as under) and UNION OF INDIA v. TARUN K. SINGH (particularly para 4 as under):
“7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to any invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it dose not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordance note in the decisions in State of Haryana v. Subhahs
Chander Marwala (1974) 3 SCC 220, Neelima Shangla v. State of Haryana (1986) 4 SCC 268, or Jatendra Kumar v. State of Punjab (1985) 1 SCC 122.
8. In State of Haryana v. Subhahs Chander Marwala, 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55 per cent marks, were appointed, although under the relevant rules the eligibility condition required only 45 per cent marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55 per cent marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the government to decided how many appointments should be made and although the High Court had appreciated the position correctly, it had “somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies”.
It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jatendra Kumar v. State of Punjab, was turned down holding that it was open to the Government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was held that the candidates did not acquire any rightly merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Neelima Shangla
v. State of Haryana, was allowed by this Court, nut on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled. The government accordingly made only 17appointment and stated before the court that they were unable to select and appointment more candidates as the Commission had not recommended any other candidates. In this background it was observed that it is, of course, open to the government not to ill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and, there must be a conscious application of mind by the government and the High Court before the number of persons selected for appointment is restricted. The fact that it was no for the Public Service Commission to take a decision in this regard was emphasized in this judgment. None of these decision, therefore, supports the appellant.”
“4. The question for consideration is whether the learned Single Judge of the Allahabad High Court was justified in interfering with an order of cancellation passed by competent authority and directing that the process of selection should be completed. Needless to mention that subsequent to the order of cancellation, in view of the allegation of malpractice, the departmental authorities had held an enquiry into the matter and the result of that enquiry revealed gross irregularities and illegalities as referred to in the judgment of the Division Bench of the Allahabad High Court. Consequently the process of selection to a public office, which stands vitiated by adoption of large-scale malpractice, cannot be permitted to be sustained by a court of law. That apart, an individual applicant for any particular post does not get a right to be enforced by a mandamus unless and untill he is selected in the process of selection and gets the letter of appointment. In the case in hand, much before the so- called list of selection was approved by the Railway Board, the order or cancellation had emanated on the basis of complaints received from so many quarters. In view of the subsequent findings of the Enquiry Committee which has gone in to the matter, we have no hesitation in coming to the conclusion that the learned Single Judge of the Allahabad High Court was wholly in error in issuing the direction in question and therefore the Division Bench of the Allahabad High Court was fully justified in interfering with the said order of learned Single Judge of the Allahabad High Court.
The Division Bench of the Calcutta High Court committed error in following the judgment of the learned Single Judge of the Allahabad High Court. The judgment of the Division Bench of the Calcutta High Court is set aside and the judgment of the Division Bench of the Allahabad High Court is upheld. In the circumstances, we allow the Union’s appeal and dismiss the appeals filed on behalf of the individual candidates. The appeals are disposed of accordingly. Any other question of law remains open.”
16. Evidently, therefore, even respondents 5 to 10, who are stated to be in the selection list, also cannot claim any right for appointment inasmuch as no order of appointment is made in their favour. Petitioners, who are not even selected, therefore, cannot stand on a better footing than respondents 5 to 10 to maintain the present writ petition. All rights will, therefore, crystallize only on appointment being made in pursuance of the selection. Hence, in my view the writ petition is clearly premature and is liable to be dismissed.
17. Since the writ petition is being dismissed on the aspect of maintainability, all other contentions of the learned counsel on either side, on merits, are not dealt with to ensure that neither of the party is prejudiced by any findings on merits and all the contentions are accordingly kept open.
The writ petition is, accordingly dismissed. As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J September 9, 2014 Note:
Furnish C.C. of the order by tomorrow. (B/o) DSK
[1] (2006) 10 SCC 261
[2] 2009 (4) SLR 6
[3] (1991) 3 SCC 47
[4] (2003) 11 SCC 768