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2015 Supreme(AP) 918
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
A. Rajasheker Reddy, J.
Durga Prasad Panigrahi - Petitioner
Versus
The Registrar, University of Hyderabad, and another - Respondents
Writ Petition No. 16484 of 2002
Decided on : 14-10-2015
For the Petitioner: M/s. Mohan Vinod and Associates.
For the Respondent:M/s. Indus Law Firm., Sri V. Rajendra Babu, Advocate.
Headnote:
Employment and Service matter – Eligibility Criteria – Post of Senior Assistant – Selection Process – Cadre – Petitioner that he was appointed as Junior Office Assistant through Direct Recruitment based on selection held in the year 1986 through proceedings and that he was kept on probation for two years As he was fully eligible and qualified for Post of Office Assistant is feeder cadre for post of Senior Assistant and the said Senior Assistant post ought to be filled up 50% by direct recruitment and 50% by promotion by in-service candidates – Though vacancies in the cadre of Senior Assistant arose in the year 1998 itself, 1st respondent did not choose to conduct DPC meetings regularly as contemplated under the Rules and instructions – When respondent University issued notification calling for applications to fill up various posts through DPC and among other posts, one post of Senior Assistant was also notified to be filled up on basis of Merit-cum-fitness quota from among in-service candidates. In pursuant to the said notification, the petitioner applied for same – 1st respondent through proceedings called the petitioner to appear for the written test and accordingly, petitioner appeared for same – 1st respondent through its notification notified that five candidates are being called for oral test amongst the various Office Assistants appeared in the written test – Petitioner was one amongst five candidates who was successful in written test and was called for oral test. One of candidates who came to know that the 2nd respondents ineligibility for post of Senior Assistant, made a representation to 1st respondent University and also to the DPC about the ineligibility of the 2nd respondent and requested the 1st respondent not to allow 2nd respondent to participate in the selection process – Even though the 2nd respondent was not qualified, he was permitted in the selection and was selected through the impugned proceedings – Aggrieved by the same, present writ petition is filed – Held, The defence taken by the 1st respondent University cannot be accepted as a ground for promoting the 2nd respondent, though 2nd respondent did not acquire requisite qualification either on the date of notification or on the last date of submission of application – There is no dispute in the principle that no promotions can be made retrospectively – Even the judgment relied on by the learned Standing Counsel in Ramesh Chandra Shah and others v. Anil Joshi and others (supra), it is observed that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents have waived their right to question advertisement or the methodology adopted by the Board for making selection. In the present case, the petitioner is neither challenging the selection process nor any regulations, but challenging the promotion of 2nd respondent as Senior Assistant on the ground that he did not acquire qualification as on the date of impugned notification – Therefore, the above mentioned judgment of the Honble Supreme Court is not applicable to facts in the present case on hand – there is no justification for the 1st respondent University for promoting the 2nd respondent, even though he was not fully qualified as on the date when vacancy arose or at least till last date of making application, as such, the impugned proceedings No. UH/P. II/B.6/2001/1178, dated 10.12.2001 is liable to be set aside and same is set aside – Writ petition is allowed.
A. Rajasheker Reddy, J.
It is the case of the petitioner that he was appointed as Junior Office Assistant through Direct Recruitment based on the selection held in the year 1986 through proceedings No. R/Dev/Rctt/86/NT, dated 24.05.1986 and that he was kept on probation for two years with effect from 07.06.1986 and his services were confirmed through proceedings No. UH/Estt/II/89/1215, dated 16.03.1989. As he was fully eligible and qualified for the post of Office Assistant, applied in response to the notification UH/R/Rctt/89/NT/10, dated 11.09.1989. He was asked to appear before the Departmental Promotion Committee (for short 'DPC') on 15.09.1989 and based on performance in the interview, he was promoted as Office Assistant with effect from 15.09.1989 through proceedings UH/R/Rctt/NT/89/488, dated 17.10.1989 and his services as Office Assistant were confirmed through proceedings No. UH/Estt/II/91/5133, dated 21.12.1991. The post of Office Assistant is the feeder cadre for the post of Senior Assistant and the said Senior Assistant post ought to be filled up 50% by direct recruitment and 50% by promotion by in-service candidates. Though the vacancies in the cadre of Senior Assistant arose in the year 1998 itself, the 1st respondent did not choose to conduct DPC meetings regularly as contemplated under the Rules and instructions. When the respondent University issued notification dated 31.07.2001 calling for applications to fill up the various posts through DPC and among other posts, one post of Senior Assistant was also notified to be filled up on the basis of Merit-cum-fitness quota from among the in-service candidates. In pursuant to the said notification, the petitioner applied for the same. The 1st respondent through proceedings No. UH/P. II/B.6/DDPC/2001-02, dated 15.09.2001 called the petitioner to appear for the written test on 28.09.2001 and accordingly, petitioner appeared for the same. The 1st respondent through its notification dated 17.10.2001 notified that five candidates are being called for the oral test amongst the various Office Assistants appeared in the written test. The oral test was scheduled to be held on 20.10.2001. The petitioner was one amongst the five candidates who was successful in the written test and was called for the oral test. One of the candidates who came to know that the 2nd respondent's ineligibility for the post of Senior Assistant, made a representation dated 22.10.2001 to the 1st respondent University and also to the DPC about the ineligibility of the 2nd respondent and requested the 1st respondent not to allow the 2nd respondent to participate in the selection process. Even though the 2nd respondent was not qualified, he was permitted in the selection and was selected through the impugned proceedings dated 10.12.2001. Aggrieved by the same, present writ petition is filed.
2. The 1st respondent filed counter affidavit denying the averments in the affidavit filed in support of the writ petition stating that the 1st respondent is not proper and necessary party and that the first respondent is only an employee of the University, as such, this writ petition is not maintainable. It is stated that a vacancy arose in the year 1999 upon the resignation of Y. Ramakrishna Rao and the said vacancy could not be filled up immediately due to administrative reasons. In the year 2001, DPC was conducted for various vacancies including vacancies of Senior Assistants and that the DPC recommended the name of the 2nd respondent among others and consequent to this recommendation, the 2nd respondent was promoted as Senior Assistant. It is stated that the guidelines framed by Department of Personnel & Training (DoPT), vide O.M. No.22011/5/86-Estt.(D), dated 10.04.1989, following the judgment of the Hon'ble Apex Court in SLP No.8058/2001 and Appeal No.8059 of 2001, wherein Supreme Court has held that promotions can be effected only prospectively even where vacancies relating to earlier years are filled up.
