@JUDGMENTTAG-ORDER
A.V. Sesha Sai, J.@mdashThis writ petition, under Article 226 of the Constitution of India is filed by the State of A.P. and the respondents in O.A. No. 343 of 2013 on the file of A.P. Administrative Tribunal, Hyderabad (hereinafter called ''Tribunal''), assailing the order dated 8.4.2013 passed in the said O.A. filed by the 1st respondent herein. By virtue of the aforesaid order, the Tribunal disposed of the said O.A., directing to consider the claim of the applicant for issuing appointment order for the post of Thanadar in accordance with merit list prepared in pursuance of the Notification Rc. No. 44410/2009/A-2(ii) dated 26.3.2012. The 1st respondent filed the said O.A. seeking the following relief:
To declare the action of the respondents in not considering the case of the applicant for appointment for the post of Thanadar in BC-A (Women) category, Nellore district as per her merit ranking in terms of the Notification in Rc. No. 44410/2009/A-2(ii) dated 26.3.2012 as bad, unjust, illegal, arbitrary and violative of Art. 14, 16 and 21 of the Constitution of India and consequentially declare that the applicant is entitled for appointment as Thanadar under BC-A (Women) category in Nellore district as per her merit ranking in terms of Notification in Rc. No. 44410/2009/A-2(ii) dated 26.3.2012 with all consequential benefits like seniority etc.
2. The facts and circumstances leading to the filing of the present writ petition are as follows:
3. The 2nd petitioner herein issued the Notification in Rc. No. 44410/2009/A-2(ii) dated 26.3.2012, inviting applications for recruitment to the posts of Forest Section Officer, Forest Beat Officer, Assistant Beat Officer, Plantation Watcher, Bungalow Watcher and Thanadar. The issue in the present writ petition relates to recruitment to one post of Assistant Beat Officer notified for O.C. category and one post of Thanadar earmarked for BC-A category women category in Nellore district covered by the said notification. The qualification required for the said post is a pass in SSC examination or equivalent. The applicant/1st respondent herein applied for Thanadar post in response to the said notification and she secured 143 marks in the written examination and got qualified in walking test and stood second in the merit list. One individual by name, Ms. Nallabothula Laxmi Prasanna, appeared for recruitment to both the posts of Assistant Beat Officer and Thanadar under BC-A Women category and she got qualified for both the posts and opted for the post of Assistant Beat Officer, as the same being a higher post, and joined in the said post pursuant to the proceedings in Rc. No. 2350(ii)/11/F4 dated 17.12.2012 issued by the Divisional Forest Officer.
4. As the applicant/respondent herein stood second in the merit list for the post of Thanadar, she submitted a representation to the Divisional Forest Officer (T), Nellore, SPSR Nellore district, requesting to appoint her as Thanadar in the vacant post, for which Ms. Nallabothula Laxmi Prasanna did not opt as she secured appointment as Assistant Beat Officer. Complaining against the action of the authorities in not considering her case for appointment to the post of Thanadar in BC-A women category as per the merit ranking in terms of the notification dated 26.3.2012 and consequently for a declaration that she is entitled for appointment as Thandar pursuant to the said notification, the 1st respondent herein invoked the jurisdiction of the Tribunal u/s 19 of Administrative Tribunal''s Act, 1985 by filing the present O.A. No. 343 of 2013.
5. The Tribunal, initially on 9.1.2013 passed an interim order directing the Divisional Forest Officer to pass appropriate orders on the representation of the applicant/1st respondent herein dated 24.12.2012. In pursuance of the said interim order passed by the Tribunal, the Divisional Forest Officer, SPSR Nellore district vide proceedings Rc. No. 2350/2012/F4 dated 29.1.2013 rejected the claim of the applicant and the relevant portion of the said proceedings, reads as follows:
As per rules, the ''Non joining vacancy'' has to be carried forward to future recruitment and hence the representation seeking appointment in the non-joining vacancy for the post of Thanadar is against the Recruitment rules and the provisions of Government order vide reference 1st and 5th cited respectively.
Hence the request of the applicant for appointment to Non joining vacancy deserves no consideration and it is hereby rejected.
6. Subsequently, the applicant/1st respondent herein filed M.A. No. 807 of 2013 before the Tribunal, seeking amendment of the prayer in the direction of impugning the said proceedings dated 29.1.2013. The 1st respondent in the O.A. filed a counter affidavit contending interalia that the case of the applicant was not considered for appointment even though she is the immediate next candidate in the merit list in the women category in view of G.O.Ms. No. 544 General Administration (Services-A) Department dated 4.12.1998 and G.O.Ms. No. 81 General Administration (Services-A) Department dated 22.2.1997 and Instruction No. 8(4) of the Recruitment Notification dated 26.3.2012. In the said counter affidavit, the 1st respondent stated that as per rules, the non-joining vacancy has to be carried forward to future recruitment and since the request of the applicant is against the Recruitment Rules and the Government Orders, the claim of the applicant was rejected. The Tribunal, by virtue of the impugned order dated 8.4.2013 disposed of the Original Application filed by the 1st respondent herein and the operative portion of the said order at paragraphs 12 to 14 reads infra:
In view of the same, the respondents are directed to consider the claim of the applicant for issuing the appointment order for the post of Thanadar in accordance with the merit list prepared in pursuance to the Notification in Rc. No. 44410/2009/A-2(ii) dated 26.3.2012 and pass appropriate orders within a period of six weeks from the date of receipt of a copy of this order.
In view of the above the impugned orders vide Rc. No. 2350/2012/F4 dated 29.1.2013 rejecting the name of the applicant is liable to be set aside and is set aside.
O.A. is disposed of accordingly. No order as to costs.
7. Felt aggrieved by the said order passed by the Tribunal, the present writ petition has been filed by the State of A.P. and the respondents in O.A. No. 343 of 2013, reiterating their contentions before the Tribunal by principally contending that the fallout vacancies, if any, due to relinquishment or non-joining etc., of selected candidates shall be notified in the next recruitment.
8. Heard the learned Government Pleader for Services-I for the petitioners and Smt. Usha N. Kiran, learned counsel for 1st respondent (applicant) and perused the material available on record including the order of the Tribunal, which is impugned in the present writ petition.
9. It is contended by the learned Government Pleader that as per the Instruction No. 8(4) of the Recruitment Notification dated 26.3.2012, the number of candidates selected shall not be more than the number of vacancies notified and there shall be no waiting list and the posts which remained unfilled for any reason whatsoever should be carried forward for future recruitment. The learned Government Pleader also contends that as per G.O.Ms. No. 81 dated 22.2.1997 and G.O.Ms. No. 544 dated 4.12.1998, the fallout vacancies, if any, due to relinquishment and non-joining etc., of the selected candidates should be notified in the next recruitment and that the Divisional Forest Officer, SPSR Nellore district issued the impugned order of rejection dated 29.1.2013 strictly in accordance with the said orders of the Government and strictly in conformity with the instructions in the Recruitment Notification.
10. Per contra, it is strenuously contended by Smt. Usha N. Kiran that there is absolutely no justification on the part of the authorities in denying appointment to the applicant/1st respondent herein for the post of Thanadar. In support of her contention, reliance is placed on the orders passed by this Court in W.P. No. 957 of 2011 and W.P. No. 5622 of 2013 and copies of the said orders are placed on record.
11. In the present case, it is an admitted fact that the applicant/1st respondent herein stood second in the selection process conducted for the post of Thanadar under BC-A women category pursuant to the notification dated 26.3.2012 and it is also equally a reality that one Ms. Nallabothula Laxmi Prasanna appeared for recruitment to both the posts of Assistant Beat Officer and Thanadar and she was selected for both the posts. The said Ms. Nallabothula Laxmi Prasanna opted for Assistant Beat Officer as the same being a higher post. It is also equally admitted that the applicant/1st respondent herein is the next meritorious candidate in the merit list for selection to the post of Thanadar. The question now which falls for consideration is whether the applicant/1st respondent herein is entitled to claim the said vacancy which admittedly has remained vacant as the first meritorious candidate who got selection for both the posts of Assistant Beat Officer and Thanadar, opted for the higher post of Assistant Beat Officer and joined in the said vacancy.
12. At this juncture, it is relevant to refer to G.O.Ms. No. 81 General Administration (Services-A) Department dated 22.2.1997. In the said Governmental order, the Government of A.P. at paragraph 9 issued the following instructions:
Therefore the Government, after careful examination, has agreed with the proposal of the Andhra Pradesh Public Service Commission and accordingly direct that hence forth the list of the candidates approved/selected by the Andhra Pradesh Public Service Commission shall be equal to the number of vacancies only including those for reserved communities/categories notified by the Unit Officers. The fallout vacancies if any due to relinquishment and non-joining etc., of selected candidates shall be notified in the next recruitment.
13. Adhoc Rule framed and notified in G.O.Ms. No. 544 General Administration (Services-A) Department dated 4.12.1998 on which the learned Government Pleader places reliance reads as under:
Notwithstanding anything contained in the Andhra Pradesh State and Subordinate Service Rules/Special Rules or adhoc rules governing maintenance and operation of waiting list for all the Direct Recruitments for the posts under the State and Subordinate Services and Last Grade Services that are being taken up by various recruiting agencies and also through Employment Exchange, the maintenance and operation of waiting list for all the recruitments shall be dispensed with and the list of candidates approved/selected in any recruitment by any recruiting agency in the State in any department for such posts shall be equal to the number of vacancies notified for that recruitment only including those meant for reserved community/category notified by the Unit Officers. The fallout vacancies, if any, due to relinquishment and non-joining etc. of selected candidates shall be notified in the next recruitment.
14. The Principal Chief Conservator of Forest, Andhra Pradesh, Hyderabad issued notification dated 26.3.2012 and Instruction No. 8(4) of the said instructions reads as under:
The number of candidates selected shall not be more than the number of vacancies notified. There shall be no waiting list and posts of any unfilled for any reason, whatsoever shall be carried forward for future recruitment.
15. As per the above instructions of Government of A.P. in G.O.Ms. No. 81 dated 22.2.1997 and G.O.Ms. No. 544 dated 4.12.1998, the fallout vacancies if any due to relinquishment and non-joining etc., of the selected candidates shall be notified in the next recruitment. Instruction No. 8(4) of the said notification dated 26.3.2012 stipulates that number of candidates selected shall not be more than the number of vacancies notified and there shall be no waiting list and the posts of any unfilled for any reason, whatsoever shall be carried forward for future recruitment. In fact the same issue fell for consideration before this Court and this Court in W.P. No. 5622 of 2012 turn down the said contention of the authorities and dismissed the writ petition by order dated 13.3.2013, while observing as follows:
Admittedly, Smt. V. Ramalakshmi was issued appointment orders for the posts of Forest Thanadar as well as Assistant Beat Officer. Admittedly, she joined the post of Assistant Beat Officer. When she has not joined the post of Forest Thanadar, the question of relinquishment does not arise. Since she was given appointment orders for the posts of Assistant Beat Officer and Forest Thanadar and when she has joined the post of Assistant Beat Officer, it cannot be treated as a case of non-joining of a selected candidate. Once a person is selected for two posts, it is obvious that she would join only the higher post and it is clear that the other post would be vacant. In such a situation i.e. when a candidate is selected for two posts, instead of issuing appointment order for two posts, the authorities should issue appointment order for the higher post, so that, the next meritorious candidate could be appointed in the next category post. It is to be seen that the respondent is the next meritorious candidate in the same selection process for the post of Forest Thanadar and the petitioners would have considered her case.
16. The above said order was passed by this Court following the earlier order of this Court in W.P. No. 957 of 2011 dated 21.6.2011. The operative portion of the said order at paragraph 5 reads as under:
It is not in dispute that the first respondent has attended the written test for the post of SGT in DSC-2006 under PH-VH General Category and secured 63.50 marks and he was subjected to medical examination. As per the merit list of DSC-2006, seven candidates were selected, out of which the name of one Sri A. Chenakrishna Reddy was eliminated as he is having only 30% of blindness, which is not sufficient as per G.O.Ms. No. 27, dated 09.08.2000 for appointment and produced a bogus certificate. As such, the petitioners have mistakenly allowed said Chenakrishna Reddy to appear for the said post under Physically Handicapped Category. Since the vacancy arisen in view of the mistake of the petitioners and in view of the fact that the said post remained unfilled as per the letter dated 21.06.2011, produced by the learned Government Pleader, the next immediate meritorious candidate in the merit list i.e., the first respondent is entitled for appointment to the post of Secondary Grade Teacher even though there is no waiting list in DSC-2006. Therefore, we do not find any infirmity in the order impugned. However, if the first respondent has got 40% of disability, he can claim for appointment to the post of Secondary Grade Teacher under Physically Handicapped Category-Visually Handicapped Category.
17. The principles laid down in the above said two orders would squarely apply to the facts of the present case. There is absolutely no justification on the part of the petitioner authorities in refusing to give posting orders to the 1st respondent herein by relying upon the above mentioned instructions of the Government of A.P. and Condition No. 8(4) of the said notification. The vacancy of Thanadar, in the instant case, by any stretch of imagination cannot be said to be a non-joining vacancy nor can it be said that the vacancy has arisen due to relinquishment. The contention contra being advanced by the petitioner authorities does not stand for twin tests of reasonableness and rationality. The contingency in the instant case is neither a case of relinquishment nor it is a case of non-joining by the selected candidates. On the other hand, it is a case of selected candidate opting for higher post. This option for higher post cannot be equated to either relinquishment or non-joining.
18. The process of recruitment starts from the date of notifying the vacancies and attains finality with the act of issuing appointment order, offering the post to the selected candidate. In the absence of reaching the said finality of issuing appointment order in respect of subject vacancy, the question of either relinquishment or non-filling of the same does not arise. The interpretation sought to be given by the authorities for denying appointment to the applicant/1st respondent herein is contrary to the very spirit and object of service jurisprudence and we find total lack of justification on the part of the petitioner authorities and such action undoubtedly tantamounts to transgression of Part-III of the Constitution of India in the event of testing the same on the touchstone of Article 16 of the Constitution of India.
19. In view of the same, we are of the considered opinion that there is neither illegality nor infirmity in the impugned order passed by the Tribunal and the petitioners herein have miserably failed in making out a case warranting any interference or indulgence of this Court under Article 226 of the Constitution of India for exercising the powers of judicial review. Having regard to the facts and circumstances of the case and in view of the orders passed by this Court and in view of the reasons recorded by the Tribunal, we deem it appropriate to dismiss the writ petition. Accordingly, the writ petition is dismissed confirming the impugned order dated 8.4.2013 passed by the Tribunal in O.A. No. 343 of 2013. However, six weeks time is granted to the petitioners from today to implement the orders passed by the Tribunal. There shall be no order as to costs.
