B. Issan Hower vs D. Ch. Kataiah

L. Narasimha Reddy, J.—Third respondent in W.P. No. 1132 of 2002 filed this writ appeal. First respondent herein filed the writ petition challenging the appointment of the appellant as Junior Lecturer in the second respondent institution. The learned Single Judge allowed the writ petition through order, dated 23.07.2013.

The relevant facts that lead to filing of this writ appeal are as under:

The second respondent is a private Junior College admitted to grant in aid. The post of Junior Lecturer in History was covered by the aid. The post fell vacant and in the course of filling the same, it emerged that the vacancy was at roaster point No. 7, earmarked for scheduled caste candidates. In the selection process no suitable candidate was found. Therefore, the vacancy was carried forward.

The selection and appointment to the posts of Junior Lecturer is governed by G.O. Ms. No. 12, Education (CB-I-2) Department, dated 10.01.1992 (for short ''G.O. 12''). It provides for scrutiny of applications, conducting of interviews, teaching tests and awarding of marks, under the respective heads. In the context of carried forward vacancies, the Government issued G.O. Ms. No. 214, General Administration (Services-A) Department, dated 08.05.2001 (for short ''G.O. 214''), which mandates that whenever a vacancy, reserved for scheduled caste and scheduled tribe candidates is carried forward, the selection therefore shall be based upon the marks obtained by the candidates in the qualifying examination and no written examination or interview shall be conducted.

The appellant felt that in case G.O. 214 is followed, he may not stand to a chance of being selected. He filed W.P. No. 22708 of 2001 with a prayer to direct the appointing authority to make selections in accordance with the procedure prescribed under G.O. 12 and not to take into account, G.O. 214. He prayed for interim order almost in terms of the said prayer and the same was granted on 02.11.2001 by this Court, in W.P.M.P. No. 28583 of 2001. The interviews were conducted on 21.12.2001 and the appellant was selected therein. An order of appointment was issued to him on 22.12.2001.

Challenging the order of appointment of the appellant, the first respondent filed W.P. No. 1132 of 2002, he pleaded that G.O. 214 is issued for the purpose of making selections, in respect of carried forward vacancies and that if the criteria mentioned therein are taken into account, the appellant would not have been selected at all. Initially on 25.01.2002, interim order was passed not to accord approval to the appointment of the appellant. However, the same was vacated when this Court was informed that the approval was accorded on 28.12.2001 itself.

During the pendency of W.P. No. 1132 of 2002, the appellant did not press W.P. No. 22708 of 2001 and accordingly it was closed on 09.08.2005. The learned Single Judge, while allowing W.P. No. 1132 of 2002, took the view that but for the interim order passed by this Court in W.P. No. 22708 of 2001, the appellant would not have been selected and no case is made out for excluding G.O. 214 from consideration in the context of making selection against carried forward vacancies.

Sri G. Vidya Sagar, learned senior counsel for the appellant submits that once a comprehensive procedure is prescribed under G.O. 12, there was no necessity at all to issue G.O. 214 and that at any rate, the said G.O. does not apply to the selection and appointments in private aided educational institutions. He further submits that it is only during the course of teaching test, that the capacity of the candidate can be assessed and in the instant case, the marks awarded in the teaching test made all the difference leading to the selection and appointment of the first respondent. He submits that the appellant has been working in the institution for the past 12 years and the appointment ought not to have been set aside. The learned counsel relied upon an order passed by this Court in W.P. No. 25761 of 2005, dated 01.02.2006. To the same effect are the arguments of the learned Government for Higher Education appearing for the third respondent.

Sri P.V.S.S.S. Rama Rao, learned counsel for the first respondent, submits that the appellant has misused the powers of Court by obtaining an interim order, paving the way for his participation and the consequential selection and not pressing the writ petition (W.P. No. 22708 of 2001) later. He contends that but for the interim order passed by this Court, the appellant would not have been selected, and once the writ petition was dismissed, the selection and appointment stand annulled. Learned counsel submits that G.O. 214 was issued with an objective of reducing the subjectivity in the process of selection, that too for the carried forward vacancies and the selection of the appellant was clearly in violation thereof.

The purport of G.O. 12 on the one hand and G.O. 214 on the other hand, has been explained in the preceding paragraph, to the extent required. The emphasis by the Government has been to ensure that the vacancies that are earmarked for scheduled caste and scheduled tribe candidates do not remain unfilled. Obviously because failing of such candidates in the interview and teaching test was resulting in their non-selection, the Government issued G.O. 214 dispensing the process of interview and teaching test, vis-a-vis carried forward vacancies.

The appellant did feel the difference that is brought about in the selection process on account of G.O. 214 and accordingly filed W.P. No. 22708 of 2001. He could have satisfied this Court about the illegality, if any, in G.O. 214 and had he been successful there, his selection could have been certainly countenanced. It is only on the basis of the interim order passed in W.P. No. 22708 of 2001, that the official respondents conducted selection, strictly in accordance with G.O. 12 and without following G.O. 214. The record that is made available to us disclosed that in the assessment relating to qualifying examination, the appellant was assigned 33.5 marks, whereas the first respondent was assigned 37.9 marks. If G.O. 214 were to have been followed, it would have resulted in the selection and appointment of the first respondent. It is only in the course of teaching test, that the appellant was awarded 34 marks, whereas the first respondent was awarded 24.6 marks. That tilted the balance and the appellant was selected.

We would have certainly examined the legality or otherwise of G.O. 214, had W.P. No. 22708 of 2001, where a declaration in relation thereto was sought; was kept alive. Having got an interim order, paving the way for his selection, the appellant has coolly put an end to the writ petition, by not pressing it. For all practical purposes, the said writ petition stood dismissed, as not pressed. The appellant cannot canvass those grounds. Apart from that, his conduct in this behalf, is reprehensible.

The first respondent acted to the utmost promptitude in challenging the selection of the appellant. This Court was also prima facie convinced that the appointment of the appellant was not proper and accordingly passed an interim order to the effect that his appointment shall not be approved. However, it was brought to the notice of this Court that the appointment was approved on 28.12.2001 itself i.e., hardly within one week from date of appointment i.e., 22.12.2001. We are yet to come across an instance of an appointment made in a private educational institution being approved with such a jet speed. It only shows the amount of influence which, the appellant wielded upon the authorities concerned, at the relevant point of time. Unfortunately, there was no dearth of such officers, who can be managed.

Lack of sincerity and honesty on the part of the officials of the Board of Intermediate is evident from the fact that though they were aware of the fact that it is only the interim order passed in W.P. No. 22708 of 2001 that facilitated the participation and selection of the appellant, they did not even care to make a mention in the order of approval. Any sensible and honest officer would not have proceeded to accord approval as long as the writ petition is pending. However, that did not come in their way, obviously on account of the influence wielded by the appellant. Once the interim order was vacated on the sole ground that the approval was already accorded, the appellant thought it fit to not press the writ petition filed by him. The whole exercise smacks of arbitrariness and of playing fraud on the Board if not the system. But for the fraudulent acts on the part of the appellant, he would not have been continued in the office for the past 12 years causing corresponding damage to the deserving candidate of the scheduled caste. We deprecate the acts of the officers concerned, who are responsible for according approval within one week from the date of appointment, that too even while the writ petition (W.P. No. 22708 of 2001) was very much pending.

Hence, the Writ Appeal is dismissed. The third respondent is directed to take immediate steps to appoint the first respondent as Junior Lecturer, irrespective of the present position in the second respondent institution. He shall be appointed in the place of the appellant and the same shall be effective from 28.12.2001. However, he shall not be entitled to be paid the backwages. These steps shall be completed within one month from today and in default, the officers concerned shall be held personally responsible for whatever the legal implications, that may ensue.

Miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.