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2013 DIGILAW 558 (AP)

Varudu Bhushana Naidu v. Andhra Pradesh State road Transport Corporation, rep. by its Vice-Chairman & Managing Director

2013-07-17

A.RAJASHEKER REDDY, ASHUTOSH MOHUNTA

body2013
Order: ARR, J. Since all these two Writ Appeals arise out of common order, they are heard and being disposed of together by this common order. The facts of the case, in nutshell, are that the appellants/writ appellants are working as conductors in different zones in the Andhra Pradesh State Road Transport Corporation (for short ‘the Corporation) on regular basis and put in substantial length of service. The appellants qualified in the departmental tests and their names were included in the final seniority list of eligible candidates for being promoted to the posts of Junior Assistants in the categories of Finance, Personnel and Material. Some candidates were given promotion and some candidates are yet to be given promotions. The Corporation is taking the services of some appellants, who are working as Junior Assistants in different categories and, thus, some of the appellants are officiating in the promotional posts. The appellants are waiting for their turn to get promotions. While so, the Corporation issued notification No.R2/684(22)/2011-HRD dated 08.11.2011 to fill up the vacancies of Junior Assistants in the above said categories by directing recruitments. The Corporation also issued ancillary notification No.R2/684(22)/2011 dated 10.11.2011 for departmental eligible candidates for applying to the said vacancies by giving age relaxation, which are notified in the notification dated 08.11.2011 meant for direct recruitment. These notifications indicate to fill up the vacancies of 544 posts which include Junior Assistants (Finance) – 266 posts, Junior Assistants (Personal) - 196 posts and Junior Assistants (Material) – 82 posts. Questioning these notifications, the appellants filed writ petitions. The respondent- Corporation filed counter affidavits in some of the writ petitions stating that the Recruitment Regulations pertaining to filling up of vacancies of Junior Assistants (P, F & M) provide for filling up of certain posts from promotional candidates from feeder category and the remaining vacancies by direct recruitment. The quota reserved for promotees is being filled up from time to time and the impugned notifications are meant for only direct recruitment. Therefore, it is not proper on the part of the appellants to question the impugned notifications, as the same are nothing to do with the promotional vacancies. The quota reserved for promotees is being filled up from time to time and the impugned notifications are meant for only direct recruitment. Therefore, it is not proper on the part of the appellants to question the impugned notifications, as the same are nothing to do with the promotional vacancies. The Corporation also issued ancillary notification dated 10.11.2011 enabling the eligible departmental employees to apply for direct recruitment by giving suitable relaxation in respect of age, as such, the appellants have no grievance in regard to the posts notified for appointment of Junior Assistants (F, P & M) by direct recruitment. The learned Single Judge after elaborately discussing the rule position i.e., Recruitment Regulations 3, 8, 9, 12 and 34, dismissed all the writ petitions by common order dated 23.12.2011 holding that the impugned notifications are in accordance with the Recruitment Regulations of the Corporation and the appellants failed to make out any case for interference of the Court under Article 226 of the Constitution of India. The same is under challenge in these writ appeals. Learned counsel for the appellants contended that while going for direct recruitment, the respondent – Corporation has not analysed the vacancy position of the direct recruitment and promotees, that all the appellants qualified the departmental tests for being promoted to the posts for which the Corporation is going for direct recruitment and that unless all the enlisted candidates are promoted, no direct recruitment can be taken up and that the manner, in which the vacancy position was arrived, is not correct. He relied on a decision of the Apex Court in Maya Mathew V. State of Kerala and others ( (2010) 4 SCC 498 ) for the proposition that the existing vacancies as on the date of notification should be taken into account for the purpose of arriving at as to how many vacancies should be filled up by direct recruitment and promotion, but not the cadre strength. He further contended that the learned Single Judge has not correctly interpreted the above decision of the Apex Court and thus erred in holding that the respondent-Corporation issued the notifications in accordance with the Recruitment Regulations. He further contended that merely because there was no direct recruitment in the past, now all the vacancies cannot be taken into account for arriving at correct quota between direct recruitees and promotees. He further contended that merely because there was no direct recruitment in the past, now all the vacancies cannot be taken into account for arriving at correct quota between direct recruitees and promotees. Per contra, learned counsel for the respondent – Corporation submitted that there was no direct recruitment for the post of Junior Assistants for the years 2006-07 to 2010-11 due to ban for filling up of the posts by direct recruitment, as such, the Corporation reviewed the vacancy position of Junior Assistants for the said period and arrived at the figures of 544 vacancies and a proposal was submitted to the Government for filling up of the said vacancies by direct recruitment for the block period 2006-07 to 2009-10 and the Government through G.O.Ms.No.90 dated 11.06.2010 had approved for filling up of direct vacancies. He also submitted that the Corporation conducted departmental qualifying test for eligible routine Clerks, Telephone Operator/PunchOperators/Comptists /Conductor for preparing an inter se – seniority list for giving promotions and from 2005 till date, 4335 candidates were qualified in seven zones and out of them 1120 employees were given promotions, but as per the vacancies calculated under promotion quota, only 546 candidates up to the current year 2010-11 were to be given promotion. He further submitted that the Corporation has given promotions to 574 employees, in excess of their quota and this was due to the ban imposed by the Government and, therefore, the Corporation contemplated to revert 574 candidates, but based on the representations of the recognized unions, it is temporarily decided to continue them in promoted posts. It is also submitted that the appellants, who had qualified in the departmental test and whose names were included in the inter se seniority list, would be given promotion as and when their turn comes up for consideration and, at any rate, the appellants can compete through direct recruitment in view of the ancillary notification dated 10.11.2011 which was issued by giving the age relaxation. It is further submitted that under Recruitment Regulation 34, the Corporation can ensure direct recruitment and promotion in specified ratios and, accordingly, reviewed the vacancy position and found that 544 vacancies are made for direct recruitment and issued notification. The learned counsel further submitted that the Corporation has correctly analysed the vacancy position with reference to the Recruitment Regulations, as such, no fault can be attributed to it. The learned counsel further submitted that the Corporation has correctly analysed the vacancy position with reference to the Recruitment Regulations, as such, no fault can be attributed to it. In support of his submissions, he relied on the decision in M. Subba Reddy and another Vs. A.P. State road Transport Corporation and others ( (2004) 6 SCC 729 ). Now, the issue arise for consideration in these appeals is whether the notification dated 08.11.2011 and the ancillary notification dated 10.11.2011 issued by the respondent Corporation for making appointments to the post of Junior Assistants (P, F & M) by direct recruitment violate the right of appellants for promotion to the said posts. In order to resolve the issue, it is necessary to refer to the relevant provisions under the Recruitment Regulations which are extracted by the learned Single Judge in the impugned order. Recruitment Regulation 3 shows that the respondent – Corporation can make appointments to the posts by direct recruitment or by promotion as per the method of recruitment specified in Annexure-A. When the Recruitment Regulations provide for appointment by way of direct recruitment to the vacancies earmarked for them, the promotion candidates cannot insist that their cases shall be considered first and then go for direct recruitment. In the additional counter affidavit filed by the respondent – Corporation, the vacancy position is clearly earmarked for direct recruitment and for promotion year-wise. It is categorically stated that for filling up of 544 vacancies by direct recruitment, vacancies for the block period 2006-07 to 2009-10 were taken into account and the vacancies arose for the year 2010-11 were left, that out of 4335 candidates qualified in seven zones, 1120 employees were given promotions to the post of Junior Assistants in the categories of Personnel, Finance and Material, that because of ban imposed by the Government from 2006-07 to 2009-10, no direct recruitment could be taken place and only departmental candidates were given promotions to the extent of 1120 vacancies and that as on today, 574 employees were given promotions in excess of their quota occupying the quota meant for direct recruitment. As per Recruitment Regulation 34, the Corporation had planned to ensure the ratio between the direct recruitees and promotees and if a direct recruitee retires, resigns or falls vacant for other reasons, it will go to direct recruitee and vice versa. As per Recruitment Regulation 34, the Corporation had planned to ensure the ratio between the direct recruitees and promotees and if a direct recruitee retires, resigns or falls vacant for other reasons, it will go to direct recruitee and vice versa. In the present case, as already noted above, 574 promotees occupied the posts meant for direct recruitees and, therefore, it is contrary to Recruitment Regulation 34. In view of this Regulation, those posts, which remained vacant due to ban of recruitment, have to be invariably filled up by direct recruitment. Therefore, the contention of the learned counsel for the appellants that without earmarking the vacancies for promotees and without exhausting the list of qualified promotional candidates, the Corporation was going for direct recruitment, is not tenable and without any basis, as such, the same cannot be countenanced. The Corporation has rightly earmarked the vacancies for direct recruitment and, accordingly, issued the notifications which cannot be found fault. As far as the decision cited by the learned counsel for the appellants in Maya Mathew case (1 supra) is concerned, it was a case wherein Special Rule was found in Note 2 of Rule 3 of the Kerala State Homoeopathy Services, 1989 and the Apex Court in para 2 of its judgment held as under: “2. Rule 3 of the Special Rules provides that the method of appointment to different categories of posts shall be in the manner specified in the Table given under the said rule. Entry No.5 in the said Table relating to Medical Officers (inserted by G,O. dated 27.5.1999, with effect from 12.4.1999) is extracted below: Category of Post Method of appointment Medical Officer 1]. By direct recruitment2]. By transfer from the category of Nurse (Homeopathy) 3]. By transfer from the category of Pharmacist Homeopathy) 4]. By transfer from the category of Clerks (Homoeo Department) Note: 1. A ratio of 5:1:1:1 shall be maintained in making appointments between direct recruitment, transfer from Nurses (Homeopathy), Pharmacist (Homeopathy) and Clerks in Homeopathy Department. 2. The appointment by transfer of Nurse (Homeopathy), Pharmacist (Homeopathy), Clerk (Homeopathy) will be done by a selection through the Kerala Public Service Commission from among the three categories. A ratio of 5:1:1:1 shall be maintained in making appointments between direct recruitment, transfer from Nurses (Homeopathy), Pharmacist (Homeopathy) and Clerks in Homeopathy Department. 2. The appointment by transfer of Nurse (Homeopathy), Pharmacist (Homeopathy), Clerk (Homeopathy) will be done by a selection through the Kerala Public Service Commission from among the three categories. In the absence of candidates by transfer those vacancies in each category will be filled up by direct recruitment from open quota and the backlog for such categories will not be restored." [emphasis supplied).” While interpreting Note 2 of Rule 3 of the Special Rules, in the above case the Apex Court came to the conclusion that the ratio of 5:1:1:1 has to be applied with reference to vacancies which were notified and not with reference to the cadre strength and there is no ground to interfere with the decision of the High Court. The Apex Court was dealing with the Special Rules wherein the Rule provided that in the absence of candidates by transfer those vacancies in each category will be filled up by direct recruitment from open quota and the backlog for such categories will not be restored. The Supreme Court was interpreting the Special Rule contained in that Rules, as such, the principle laid down while interpreting that Rule has no application to the facts of the case. In the present case, Recruitment Regulation 3 (2) and Annexure-A specifically provide the ratio between direct recruitment and promotees and Regulation 34 specifically provides that the ratio has to be ensured and the Corporation can review the position for ensuring the ratio to be maintained in Rule 3, as such, the interpretation given by the Supreme Court in that case cannot be imported into the present case. The learned Single Judge also rightly distinguished the judgment of the Apex Court on facts and we are also in agreement with the same. In the decision in Ashwani Kumar Singh V. U.P. Public Service Commission ( 2003 (11) SCC 584 ), the Apex Court in paras 10 to 13 of its judgment held as follows: “10. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Morton (1951 AC 737 at p. 761), Lord Mac Dermot observed : "The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge." 11. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech........is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) ((1971) 1 WLR 1062) observed : "One must not, of course, construe even a reserved judgment of Russell, L. J. as if it were an Act of Parliament." In Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said : "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case." 12. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 13. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 13. The following words of Lord Denning in the matter of applying precedents have become locus classicus : "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive." In view of the above, the decision cited by the learned counsel for the appellants has no application to the facts of the case, because the Apex Court was interpreting a different rule and similar rule is not found in the present case. In M. Subba Reddy case (2 supra), the Apex Court clearly held that even if the promotees have occupied the posts meant for direct recruitees, they should give way to direct recruitees as and when direct recruitment is resorted to. It is also held that just because direct recruitment cannot be resorted to for any reason, the promotees can occupy the posts meant for direct recruitees and that even if promotions are made to the posts meant for direct recruitees, as soon as direct recruitment is made, their position will be pushed down in the order of seniority. The principle laid down in the above judgment clearly supports the case of the respondent – Corporation and, more so, the Apex Court has dealt with same Regulations as in the present case. For the aforesaid reasons, we do not find any infirmity in the order of the learned Single Judge and we confirm the same. Accordingly, all these Writ Appeals are dismissed. There shall be no order as to costs. As a sequel, miscellaneous petitions filed in the writ appeals shall stand disposed of.