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2025 DIGILAW 334 (AP)

Shaik Yousuf Khan, S/o. Shaik Meera v. Chief General Manager (HRD)

2025-02-21

HARINATH.N

body2025
ORDER : HARINATH.N, J. 1. The petitioner is challenging the respondents' inaction in issuing the orders of appointment, though the petitioner's name was shown at S.No.31 in the provisional selection list of Junior Lineman, Eluru Circle, West Godavari District. The petitioner is seeking a consequential direction to the second respondent to issue orders of appointment as per the provisional selection list. 2. The learned counsel appearing for the petitioner submitted that the petitioner worked as Shift Operator at Turputalla Sub-station from 22.03.2007 to 27.09.2013 on a contract basis, and while he was working as a Shift Operator in December 2011, the 1st respondent issued a notification for filling up the post of Shift Operators and Junior Lineman. The petitioner applied for the post of Junior Lineman. It is submitted that the petitioner secured 70.05 marks and was placed at S.No.31 in the order of merit. The 1st respondent issued a second notification in pursuance of the directions of this Court in WP.No.3753 of 2012. 3. As per the second notification at para III (VI), it was stated that any disruption or discontinuation of service for a period of 180 days and above for whatever reason as a contract worker shall be considered as if it were fresh commencement from the date of resumption after such discontinuation or disruption. 4. The second notification was issued on 28.02.2014, and as of the date of said notification, the petitioner was not in the respondent's service for the last 154 days from 27.09.2013. The petitioner worked for more than six and a half years, and as such, he is entitled to weightage marks at two marks per year. 5. The learned counsel for the petitioner submits that the respondents have not assigned any reasons for denying the job to the petitioner. Out of the 70 posts of Junior Lineman, appointment orders were issued to 69 candidates, and the petitioner was the only candidate for whom the appointment orders were denied. 6. The learned counsel for the petitioner prays for a direction to the respondents to issue orders of appointment to the petitioner. The learned counsel also submits that the respondents issued the second notification in the year 2014 duly extending the weightage marks for candidates who were working on a contract basis. The respondents ought to have extended the weightage marks towards the service rendered by the petitioner on a contract basis. 7. The learned counsel also submits that the respondents issued the second notification in the year 2014 duly extending the weightage marks for candidates who were working on a contract basis. The respondents ought to have extended the weightage marks towards the service rendered by the petitioner on a contract basis. 7. The learned standing counsel appearing for the respondents submits that the petitioner's case was not considered as he was not in service from 28.09.2013 onwards. It is also submitted that the respondents are made it very clear by issuing a memo No.HRD/MPS/MPP/F.No.149/12/D.No.326/14, dated 15.05.2014 categorically stated that in-service contract candidates must be continuing in the organization as on the date of notification i.e., 28.02.2014. 8. It is submitted that as the petitioner did not fulfil the condition as required under the memo referred to above, the petitioner was not considered for appointment as a Junior Lineman. It is stated in the counter that the name of the petitioner was erroneously reflected in the provisional selection list. It is also stated that the applicants must scrupulously follow the conditions mentioned in the notification dated 28.02.2014. 9. It is submitted that the petitioner does not entitle himself to a job as he passed the test conducted by the respondents. It is submitted that the petitioner, to become eligible for consideration, should comply with the condition as mentioned in the memo dated 15.05.2014, which mandates the in-service contract candidates to continue in the organization as on the date of the second notification, i.e., 28.02.2014. It is also stated in the counter that the petitioner has not secured sufficient marks for the post of Junior Lineman. It is also submitted that the entire recruitment process is transparent, and denial of employment to the petitioner is only on account of the petitioner not qualifying the requisite condition of being in-service as on the date of notification, i.e., 28.02.2014. It is submitted that the petitioner was not found fit for appointment and was not entitled to grant weightage marks as he was not in service as of the date of notification. 10. Heard the learned counsel for the petitioner and the learned standing counsel for the respondents. Perused the material on record. Consideration of the Court : 11. The respondents had issued a notification dated 21.12.2011, which was challenged by various applicants for denying weightage marks for in-service candidates. 10. Heard the learned counsel for the petitioner and the learned standing counsel for the respondents. Perused the material on record. Consideration of the Court : 11. The respondents had issued a notification dated 21.12.2011, which was challenged by various applicants for denying weightage marks for in-service candidates. Writ petitions were filed, and this Court directed the issuance of a fresh notification duly incorporating the provision for grant of weightage marks. 12. The respondents issued a second notification dated 28.02.2014. Clause VII of the notification dealt with instructions for the candidates who had already applied in pursuance of the earlier notification dated 21.12.2011. The relevant clause is extracted hereunder : VII INSTRUCTIONS TO ALREADY APPLIED CANDIDATES TO THE EARLIER NOTIFICATION DT.22.12.2011 i) The candidates who have already applied to the earlier Advertisement No.109, dt.21.12.2011 published on 22.12.2011 in Eenadu & Hindu shall also be eligible for consideration. THEY NEED NOT APPLY AGAIN. ii) The candidates (both In-service contract workers and fresh candidates) who have already submitted the applications for the post of Junior Lineman to the earlier notification dt.22.12.2011 may submit their application form afresh if claims on Sports Quota, if necessary. iii) The age of the candidates who have already applied in pursuance of earlier notification shall be considered for the present notification. 13. The second notification issued in the year 2014 also considered the age of the candidates who have already applied in pursuance of the earlier notification dated 21.12.2011 shall be considered as of 22.12.2011. In other words, the age as of 22.12.2011 is the age of 28.02.2014. 14. The entire dispute arose after the respondents issued a memo No.HRD/MPS/MPP/F.No.149/12/D.No.326/14, dated15.05.2014, whereby certain instructions/guidelines were issued. The notification dated 21.12.2011 and also 28.02.2014 are also referred to. The memo mandates the applicants to follow the instructions issued in the notification dated 28.02.2014 scrupulously. The criteria for selection were also mentioned. Clauses v, vi, and vii of the memo would be relevant for adjudication of the issue at hand. The notification dated 21.12.2011 and also 28.02.2014 are also referred to. The memo mandates the applicants to follow the instructions issued in the notification dated 28.02.2014 scrupulously. The criteria for selection were also mentioned. Clauses v, vi, and vii of the memo would be relevant for adjudication of the issue at hand. Clause v, vi and vii of the memo reads as follows : v. The in-service contract worker who have been working in the organizations of the APTRANSCO/DISCOMs in the relevant job shall be given weightage marks to a maximum of 20, depending on the length of service in AP Transco/Discoms i.e., 2 marks for every year (i.e., 365 days) service as contract worker as per the judgment dt.09.12.2013 of the Hon’ble High Court of AP issued in WP No.3753/2012 and batch of cases. vi. Any disruption or discontinuation of service for a continuous period of 180 days and above for whatever the reason as contract worker shall be considered as if fresh commencement from the date of resumption after such discontinuation or disruption. Service less than six months shall not be considered for weightage. vii. In service contract candidates must be continuing in the organization, as on the date of this notification dt.28.02.2014. For computation of period of contract service, the date of joining on such service in the relevant job shall be reckoned and the period of service is computed upto the date of notification i.e., 28.02.2014. 15. There is force in the submissions of the learned counsel for the petitioner that the respondents could not have imposed fresh terms and conditions which would disentitle the petitioner for the job. The recruitment has to be proceeded based on the terms and conditions of the notification itself and nothing beyond that. In the present case, the respondents vide notification dated 28.02.2014 at Clause VII (i) entitled the petitioner to consideration on the application, which was already submitted in pursuance of notification dated 21.12.2011. There was no necessity to apply again in furtherance of the second notification dated 28.02.2014. 16. The respondents also considered the age issue, adequately extended the age criteria, and made eligible the applicants who had reached the maximum age as of the date of the first notification for the subsequent notification as well. The respondents have introduced a pre-condition in the memo 17. 16. The respondents also considered the age issue, adequately extended the age criteria, and made eligible the applicants who had reached the maximum age as of the date of the first notification for the subsequent notification as well. The respondents have introduced a pre-condition in the memo 17. dated 15.05.2014 making it mandatory for the in-service candidates to be in-service of the respondent as on the date of the second notification for grant of weightage marks for the service rendered by them on a contract basis. Such a condition is an altogether new condition imposed on the notification after three months from the date of issue of notification. This Court while disposing WP.No.3753 of 2012 and batch cases, has held at direction No.5 issued in the order of writ petition as follows ; The weightage marks can be added even in the matter of recruitment to the posts of Junior Lineman, provided the candidates do possess the requisite educational qualifications. If the in-service contract labour do not possess the requisite educational qualifications and if they are not rendering service on contract basis as Junior Lineman, on the relevant date they are not entitled for any weightage marks. 18. The notification dated 28.02.2014 is in addition to the earlier notification dated 21.12.2011 and not a substitute for the earlier notification. The petitioner was in service of the respondent as of the date of the first notification. The petitioner left the respondent's service on 27.09.2013 as on that date the petitioner's application for appointment as a Junior Lineman was still pending consideration for various reasons. The subsequent notification dated 28.02.2014 did not require the petitioner to re- apply afresh. Thus, when the petitioner was considered an in- service candidate as of the date of application in pursuance of the notification dated 21.12.2011, there is no justification for the respondents super-imposing a new condition by introducing working instructions/guidelines dated 15.05.2014 and disentitling the petitioner the job of a Junior Lineman. 19. It is a well-settled law that alteration of selection criteria in the middle of or after the commencement of the selection process was found unjustified. The Hon'ble Supreme Court in the matter of Tej Prakash Pathak and others Vs. Rajasthan High Court and Others, [ (2013) 4 SCC 540 ]. The Hon'ble Supreme Court while doubting the correctness of a coordinate bench decision in K.Manjusree Vs. The Hon'ble Supreme Court in the matter of Tej Prakash Pathak and others Vs. Rajasthan High Court and Others, [ (2013) 4 SCC 540 ]. The Hon'ble Supreme Court while doubting the correctness of a coordinate bench decision in K.Manjusree Vs. State of Andhra Pradesh for not noticing an earlier decision in State of Haryana Vs. Subash Chandar Marwaha constituted a larger bench for an authoritative pronouncement on the subject. The Hon'ble Supreme Court answered the reference in the following terms ; 1) Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies; 2) Eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness; 3) The decision in K. Manjusree (supra) lays down good law and is not in conflict with the decision in Subash Chander Marwaha (supra). Subash Chander Marwaha (supra) deals with the right to be appointed from the Select List whereas K. Manjusree (supra) deals with the right to be placed in the Select List. The two cases therefore deal with altogether different issues; 4) Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/ non-arbitrary and has a rational nexus to the object sought to be achieved. 5) Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps; 6) Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list. 20. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list. 20. The Hon'ble Supreme Court upheld the Rajasthan High Court's view on the salutary principle not to permit the state or its instrumentalities to tinker with the rules of the game in regard to prescribing eligibility criteria. 21. On the facts of this case, the respondents undoubtedly tinkered with the rules of the game. The petitioner's fundamental eligibility criteria were dismantled by superimposing the working instructions/guidelines dated 15.05.2014, which is not permissible in law. 22. The denial of job to the petitioner by super-imposing a new condition which did not exist in the notification dated 21.12.2011 and notification dated 28.02.2014 is highly illegal, irrational and an arbitrary act on part of the respondents. The petitioner is entitled for the post of Junior Lineman or an equivalent post. 23. For the reasons stated above, this Court deems it appropriate to direct the respondents to pass appropriate proceedings and issue orders of appointment to the petitioner within six weeks from the date of receipt of this order. 24. Accordingly, the writ petition is allowed without costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.