w w w . L a w y e r S e r v i c e s . i n



Dr. Battepati C. Narasimhulu v/s The Director of Medical Education


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    Writ Petition No. 15894 of 2020

    Decided On, 18 September 2020

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE M. VENKATA RAMANA

    For the Petitioner: ------- For the Respondent: -------



Judgment Text

1. This writ petition is filed to grant a relief more in the nature of a writ of Mandamus under Article 226 of Constitution of India declaring the action of the first respondent, the Director of Medical Education, State of Andhra Pradesh, in directing to carry forward roster points relating to horizontal reservations/special reservations, viz., women reservations of respective categories, physically handicapped, visually handicapped etc., as per Rule 22 of A.P.State & Subordinate Service Rules (for short, ‘General Rules’), in failing to fill up those roster points under direct recruitment by general category candidates, viz., the male candidates, as illegal and arbitrary. Consequently, the inaction of the respondents in appointment of Assistant Professors including of Radiotherapy pursuant to notification No.1 of 2020 issued by the first respondent, is sought be declared arbitrary, illegal and unconstitutional violating Articles 14, 16 and 21 of Constitution of India, as well as Rules 22 and 22(A) of General Rules in failing to follow the law laid down by the Hon’ble Supreme Court in JITENDRA KUMAR SINGH AND ANOTHER v. STATE OF UTTAR PRADESH (2010(3) SCC 119) and to issue consequential directions, directing the first respondent to make fresh selections including conducting fresh counselling for the posts of Assistant Professors including that of Radiotherapy upon filling up the roster points/vacancies, where women candidates are not available by general category including men.2. Sri P.V.Krishnaiah, learned counsel for the petitioner and the learned Government Pleader for Services – III representing the respondents, addressed arguments in this writ petition at the admission stage itself, on merits. Therefore, this writ petition is being disposed of at the stage.3. The petitioner completed MBBS from Kurnool Medical College, Kurnool, did MD in Radiotherapy from Nizam Institute of Medical Sciences, Hyderabad, and was a Senior Resident in Guntur Medical College, Guntur. Thus, he completed his course of study in between the years 2007 and 2019 and as a meritorious candidate.4. On account of his qualification stated above, he is eligible for appointment to the post of Assistant Professor of Radiotherapy. His social status is ‘Scheduled Caste’ and he is entitled either to be appointed through OC General Quota or SC General Vacancies. He claimed that he is eligible and entitled to be appointed against Scheduled Caste Women Quota, as is stated in 100 roster points prescribed under Rule 22 of General Rules, if there is no women candidate possessing requisite qualification for being appointed to the above post. Thus, he claimed that he is entitled for protection with reference to Rules of Reservation under Article 16(4) of Constitution of India and that he cannot be denied a position, when available, against a vacancy reserved for SC women, which cannot be kept vacant nor could it be carried forward. The petitioner also questioned the effect of Rule 22(1)(g) of General Rules, with reference to conducting limited recruitment, in respect of such categories, when vacancies are available, immediately after general recruitment and further carrying them forward such vacancies in the absence of any qualified candidate, to fill up such vacancies.5. The petitioner specifically contended that second proviso to Rule 22(a)(c) of General Rules provides for filling up under General Quota with male Scheduled Caste/Scheduled Tribe candidates, as the case may be, if there is no eligible women candidate, which is stated to be as per G.O.Ms.No.674, General Administration (Services-D) Department, dated 30.10.2008. Thus, according to him, with reference to Assistant Professor Radiotherapy, there was no candidate, who even applied, much less qualified to fill up such post among SC women and as per the provisional list published by the first respondent, he has merit to consider, since he was a qualified candidate among SC candidates. Thus, the petitioner contended that out of five (5) notified vacancies for the post of Assistant Professor Radiotherapy, he stood qualified towards SC Quota though not qualified towards the quota for other category and therefore, his candidature should have been considered by the first respondent.6. The petitioner further stated that he gave a representation to the first respondent, bringing to the notice that during the years 2017- 18, viz., five recruitment years though the post of Assistant Professor of Radiotherapy was notified to be filled up by SC Woman candidate and that it was carried forward on account of non-availability of SC women candidates while referring to his status as per provisional merit list for recruitment year 2020. He further stated that he also pointed out in his representation to the first respondent that there was no women candidate as per the above provisional merit list of the recruitment year 2020 and he being only SC candidate enlisted, who has required eligibility and qualifications, his request to fill up such vacancy be considered.7. While referring to filing Writ Petition No.14614 of 2020 on the file of this Court, to direct to consider his case for appointment to the above post, which is otherwise earmarked for SC women due to non-availability and to fill up such vacancy, in his favour, referring to the effect of judgment of Hon’ble Supreme Court referred to above, he contended that the first respondent proceeded further inspite of pendency of the above writ petition, to complete the selection process. The petitioner further stated that the first respondent is also giving appointment orders after conducting counselling to fill up all the posts including the one referred to above and that the first respondent has finalised the selection process. He also referred to the proceedings issued by the first respondent, dt.01.09.2020, giving time schedule to participate in Zoom conference for selected candidates in relation to the above recruitment, on 02.09.2020 from 11.00 a.m. onwards.8. Thus setting out in his pleadings in the affidavit filed in support of this petition mainly, the petitioner requested the relief.9. Sri P.V.Krishnaiah, learned counsel for the petitioner with reference to the case of the petitioner and notification issued by the first respondent in this context as well as the relevant GOs including the effect of Rule 22(A) and Rule 22 of the General Rules, addressed elaborate arguments contending that the petitioner is entitled for relief, since the Constitution of India itself provided a guarantee in the nature of fundamental right.10. Learned Government Pleader for Services – III referring to the material relied on for the petitioner and effect of Rule 22 (1)(g) and (h) of General Rules and referring to effect of the second proviso to Rule 22(h)(II) of the General Rules as well as the nature of Rule 22(A) providing for women reservation in appointments, addressed arguments with the equal vehemence opposing the version of the petitioner. Learned Government Pleader also questioned the frame of this writ petition, without challenging the main Rules.11. Now, the point for determination is, ‘Whether the writ petition as framed is maintainable and if the petitioner is entitled to claim that roster points earmarked for SC women out of 100 points in terms of Rule – 22 of General Rules be reverted to general category particularly, for the post of Assistant Professor of Radiotherapy, in his favour and to direct his appointment for the post of Assistant Professor, in the same discipline?’POINT:12. The Government of Andhra Pradesh through the Director of Medical Education, now represented by the first respondent in this writ petition issued a notification No.1/2020(undated) for direct recruitment of Assistant Professors and lateral entry. By direct recruitment 442 total vacancies and 295 by way of lateral entry are notified by this notification. This notification sets out various disciplines/departments for which the vacancies are required to be filled up prescribing required qualifications including rule of reservation to apply as per A.P.State Government Rules in force.13. In annexure – I of this notification, various branches for which the appointments are sought to be made, including total number of vacancies as well as backlog vacancies, are stated. This annexure also sets out the vacancies so available basing on the rule of reservation including of backlog vacancies. With reference to Radiotherapy, five vacancies stood notified. Apart from these five vacancies, in relation to roster points 2 and 22, there are vacancies reserved for SC women. It is relevant for the present purpose.14. A provisional merit list was published of the candidates, who applied for these posts for various branches. The petitioner stood at serial No.12 as per this provisional list. Out of the candidates so shortlisted by this provisional list, all the five notified vacancies were filled up as per the final selection list. Neither in the provisional selection list nor in the final list, SC woman candidate is, referred to. It is the contention of the petitioner that none applied for this post from among women (SC status).15. The precise basis of the petitioner is that despite filling up vacancies so notified, viz., five vacancies in the present recruitment of 2020, he is entitled to be considered against SC Women Quota, described as ‘backlog vacancies’, since he is the only qualified SC candidate and stood first in the list.16. Foundation is sought to be laid by the petitioner in support of his contention referring to relevant proviso under Rule 22(A)(3) which is stated to have been inserted by an amendment brought out through G.O.Ms.No.674 GAD dated 30.10.2008. Paras 12 and 13 of the affidavit of the petitioner specifically set out this factor. It is desirable to extract these two paragraphs hereunder:“12. I respectfully submit that as per Rule 22(A) of A.P.State & Subordinate Service Rules, i.e. 2nd proviso of Rule 22(A)(3) of A.P.State & Subordinate Service Rules, in the event of non-availability of eligible candidates to fill up the Roster points earmarked to them the vacancies shall be filled up with male SC/ST candidates as the case may be. The relevant proviso under Rule 22(A)(3) which was inserted as per the amendment made to the A.P. State & Subordinate Service Rules in G.O.Ms.No.674, GAD dated 30.10.2008 is extracted below:“Provided that where no eligible women candidate is available to fill up the roster point earmarked to them, the vacancy shall be filled up with male SC/ST candidates as the case may be.”13. I respectfully submit that in view of the aforesaid provisions inserted to second proviso to Rule 22(A)(3) of A.P.State & Subordinate Service Rules in G.O.Ms.No.674, GAD dated 30.10.2008 in the event of non-availability of women SC/ST candidates, particular post to fill up the Roster point earmarked for women SC/ST candidates, such post must be filled up by men in respective category.”17. As seen from the rules made available from the library of this Court [(published by Panchayat Publications (2016 Edition) of Sri Padala Rami Reddy, and Deccan Law House compiled by Sri D.M.Raju (2018 Edition)] rule 22(A) of General Rules reads as under:“Rule 22A. Women Reservation in appointments: Notwithstanding anything contained in these rules or special rules or Adhoc Rules:(1) In the matter of direct recruitment to posts for which women are better suited than men, preference shall be given to women:Provided that such absolute preference to women shall not result in total exclusion of men in any category of posts.(2) In the matter of direct recruitment to posts for which women and men are equally suited, there shall be reservation to women to an extent to 33 1/3% of the posts in each category of Open Competition, Backward Classes (Group-A), Backward Classes (Group-B), Backward Classes (Group-C), Backward Classes (Group – D), [Backward Classes (Group-E)], Scheduled Castes, Scheduled Tribes and Physically Handicapped and Exservicemen quota:(Subs. By G.O.Ms.No.674, G.A. (Ser.D), Dt.30-10-2008) (3) In the matter of direct recruitment to posts which are reserved exclusively for being filled by women, they shall be filled by women only.[4. In the matter of promotion and appointment by transfer involving promotion to posts for which women and men are equally suited and where the cadre strength of posts is more than five there shall be reservation to woman to an extent of 33 1/3% in favour of scheduled Castes and Scheduled Tribes.Provided that where no eligible women candidate is available to fill-up the roster point earmarked to them. The vacancy shall be filled up with male SC/ST candidates as the case may be].[Added by G.O.Ms.No.449, G.A.(Ser.D), dt.15.09.2009 w.e.f.14.02.2003]Note: (1) The principle of reservation for women candidates to the extent of 30% in the matter of direct recruitment shall be from (2-1-1984) to 27-05-1996.(G.O.Ms.No.928, G.A. (Ser. D) Dept., Dt.6-10-1995).(2) The principle of reservation for women candidates to the extent of 33 1/3% in the matter of direct recruitment shall be with effect from the 28-05-1996.(G.O.Ms.No.237, G.A. (Ser. D) Dept., Dt.28-05-1996)(G.O.Ms.No.65, G.A. (Ser. D) Dept., Dt.15-02-1997)]”18. The proviso stated in the affidavit of the petitioner, referred to above, is not a part of Rule 22-A so extracted, of General Rules. In the course of hearing, on behalf of the petitioner, the relevant G.O., viz. G.O.Ms.No.674 GAD dated 30.10.2008 is not produced nor it is a part of the paper book filed on behalf of the petitioner. However, it is to be noted that such proviso in relation to appointments by means of promotions or by transfer is a part of Rule 22-A(4) of General Rules and it is clear from a reading of this rule 22(A) itself.19. In the course of hearing, learned Government Pleader for Services – III, when requested by this Court, produced a copy of G.O.Ms.No.674 General Administration (Services-D) Department dated 30.10.2008, on 10.09.2020. There is no mention of the proviso relied on for the petitioner in this G.O.No.674, dt.30.10.2008. A copy of this GO No.674 is also served on learned counsel for the petitioner. After going through this GO, learned counsel for the petitioner in the course of hearing stated that it refers to inclusion of certain categories for the purpose of reservation, particularly women. It is desirable to place a scanned copy of G.O.Ms.No.674 General Administration (Services – D) Department, dated 30.10.2008 in this order and this image is as under:(Contd……..Page 10)“IMAGE”20. Therefore, it is manifest that the proviso as sought to be propounded to favour the petitioner, is not substantiated. Thus, the very foundation laid by the petitioner to support his claim remained nonexistent.21. Vehement contentions advanced on behalf of the petitioner by his learned counsel in this context, therefore, are difficult to accept for want of basis. 22. Learned counsel for the petitioner next contended that in view of G.O.Ms.No.237 General Administration (Services D) Department dated 28.05.1996, Rule 22-A(2) stood amended and as per the proviso thus brought out, in the event of non-availability of sufficient number of women candidates, the vacancies shall be filled in by men. At the same time, as contended by learned Government Pleader for Services – III, the effect of sub-rule 3 of Rule 22-A cannot be lost sight of which is to the effect that in relation to direct recruitment to posts, which are reserved exclusively for being filled by women, they shall be filled by women only.23. Learned Government Pleader for Services – III while repelling the contentions of the learned counsel for the petitioner relied on the effect of Rule 22 (2)(g) and (h) of General Rules mainly contending that in view of these rules, which make out policy of the Government in relation to direct recruitment for any posts in public service and employment in the event of any vacancy not being filled up by suitable candidates belonging to such groups of social status referred to therein, immediately after general recruitment, a limited recruitment with reference to such category alone shall be conducted and appointments shall be made selecting suitable candidates. While referring to effect of second proviso to Rule 22(h)(II) of General Rules, learned Government Pleader further contended that, even if such vacancies are not filled up in the third succeeding recruitment of qualified candidates belonging to Scheduled Tribe or the Scheduled Caste, interchangeability in between these two categories is permissible and that in view of Rule 22(h) and (I), if such vacancies earmarked for women of different categories of social status stated therein are not filled up even after conducting limited recruitment, such vacancies may be allotted to the open competition after obtaining permission from the Government and thus, such vacancies thereafter shall be filled up by the candidates selected on the basis of open competition.24. Learned Government Pleader further contended that when that is the prescription of the rules, when the petitioner is intending to question the same, he should have questioned the very nature of these rules. Thus, learned Government Pleader contended that the manner in which relief is sought in this writ petition, is not with reference to questioning the nature of these rules and thus, this writ petition, as such, is not maintainable.25. However, learned counsel for the petitioner contended that it is not the situation concerned to this case and particularly having regard to the salutory provisions in Article 16(4) of Constitution of India, in as much as the rules pointed out by learned Government Pleader are not applicable to the present case, there is no necessity to challenge any rule. In this context, learned counsel for the petitioner relied on the ruling of the Hon’ble Supreme Court in JITENDRA KUMAR SINGH AND ANOTHER v. STATE OF UTTAR PRADESH AND OTHERS, referred to supra and observations therein.26. Learned Government Pleader in reply, contended that the observations of Hon’ble Supreme Court in the above ruling are based on the rules applicable to State of Uttar Pradesh and as to their interpretation as well as application. Therefore, it is contended that in given facts and circumstances of the present case, particularly, having regard to the effect of Rule 22(h) and (i) of General Rules as applicable to the State of Andhra Pradesh, the petitioner cannot now call its application in his aid.27. In the above decision of Hon’ble Supreme Court, the effect of relevant provisos of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (4 of 1994) and of G.O. dated 25.03.1994, was considered. While referring to the authoritative pronouncement of Hon’ble Supreme Court in INDRA SAWHNEY v. UNION OF INDIA 1992 (Supp.(3) SCC 217), where it is clearly explained what is vertical reservation and horizontal reservation as well as their respective fields of operation, in para – 84 of this ruling with reference to the instructions in paras 2 and 4 of G.O. dated 26.02.1999 of Government of Uttar Pradesh, the following observations are recorded:“Paras 2 and 4 of the aforesaid instructions which are relevant are hereunder:-“2. The reservation will be horizontal in nature i.e. to say that category for which a women has been selected under the aforesaid reservation policy for posts for women in Public Services and on the posts meant for direct recruitment under State Government, shall be adjusted in the same category only;* * *4. If a suitable women candidate is not available for the post reserved for women in public services and on the posts meant for direct recruitment under State Government, then such a post shall be filled up from amongst a suitable male candidate and such a post shall not be carried forward for future;”The Learned Single Judge whilst interpreting the aforesaid, has observed that it does not specifically provide for posts which are not filled up by women candidates to be filled up from the male candidates. This view is contrary to the specific provision contained in Para 4. The aforesaid provision leaves no matter of doubt that any posts reserved for women which remain unfilled have to be filled up from amongst suitable male candidates. There is a specific prohibition that posts shall not be carried forward for future. Therefore, the view expressed by the Learned Single Judge cannot be sustained.85. We may also notice here that in view of the aforesaid provisions, the State has not carried forward any of the general category posts reserved for women and outstanding sportspersons. Furthermore, all the posts remaining unfilled in the category reserved for women have been filled up by suitable male candidates, therefore, clearly no post has been carried forward. Therefore, the mandate in Indra Sawhney (supra) and the G.O. dated 26.2.1999, have been fully coupled with. We are also of the opinion that the conclusion recorded by the Division Bench is without any factual basis. The factual position was brought to the notice of the Division Bench in the Recall/Modification application No.251407 of 2007. However, the recall/modification application was rejected. We are, therefore, of the opinion that the Division Bench erred in issuing the directions to the appellants to fill in the unfilled vacancies reserved for women candidates from suitable male candidates. This exercise had already been completed by the appellant- State.”28. Thus, the extracted portion above clearly indicates that basing on specific situation, in application to State of U.P., it was

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so observed. Thus, in the absence of a suitable woman candidate, the posts reserved for women in public services in relation to direct recruitment under the State Government, were directed to be filled up from amongst the suitable male candidates, in the State of Uttar Pradesh and that, such posts cannot be carried forward for future. Thus, the consideration in JITENDRA KUMAR SINGH referred to supra, leading to recording such observations, is case specific and based on the material stood for determination. [Observations in JITENDRA KUMAR SINGH, being of such nature, are considered by Hon’ble Supreme Court on slightly different facts, in NIRAVKUMAR DILIPBHAI MAKWANA v. GUJARAT PUBLIC SERVICE COMMISSION AND OTHERS (2019(7) SCC 383 = AIR 2019 SC 3149), in para – 30, which I came across].29. Therefore, accepting the contentions of Sri Bheema Rao, learned Government Pleader for Services – III and unable to accede to the vehement contentions of the learned counsel for the petitioner, the inference to draw is that JITENDRA KUMAR SINGH, is not assisting the contention of the petitioner. Particularly, having regard to the effect of Rule 22(g) and (h) of General Rules, when their effect is not specifically questioned, challenging their vires, any amount of contentions on behalf of the petitioner, cannot be accepted.30. Similarly, in as much as the final selection list points out three women candidates, since there is more than sufficient number of women candidates in this process of recruitment, G.O.No.237 dated 28.05.1996 sought to be relied on by the petitioner cannot be made applicable. Thus, the substratum of the claim of the petitioner remained obscure. When the very frame of the petition, having regard to the nature of relief sought, as rightly pointed out by learned Government Pleader is seriously assailable and when the petitioner did not make out a case to consider his candidature with reference to a backlog vacancy reserved for SC women, this writ petition cannot stand.31. Attempt of the petitioner to interfere with the scheme of roster points to suit his convenience, which is otherwise well settled and stood test of time, needs to be discouraged.32. Thus, it is held that the writ petition as filed, is not maintainable nor the petitioner is entitled for relief in this writ petition.33. In the result, the writ petition is dismissed. No costs. All pending petitions, stand closed.
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