Maloth Vinod Kumar Vs The State of Andhra Pradesh

HON’BLE DR. JUSTICE K. MANMADHA RAO WRIT PETITION No.4791 of 2022

ORDER :

This petition is filed under Article 226 of the Constitution of India for the following relief:-

“…to issue an appropriate writ order or direction more particularly one in the nature of Writ of Mandamus declaring the actions of the Respondents in not filling up the 39 notified /vacant posts in DSC 2018 for the Subject Posts in East Godavari District under GPA and Tribal Schedule category, as illegal, arbitrary, discriminatory, unconstitutional and contrary to the settled principles of law and consequently direct the Respondent to fill the 39 notified/vacant posts in DSC 2018 for the Subject Posts in the East Godavari District and pass such other order or orders … … .”

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Brief facts of the case are that a few of the petitioners have provisionally been selected for the notified 39 posts in DSC 2008 which were reserved in the East Godavari District for the subject Posts under the GPA and Tribal Schedule category. Other petitioners are next in line and potential candidates who would be selected if the recruitment process is started. The Government of Andhra Pradesh through the School Education Department issued a notification for

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teacher recruitment for the posts of school assistants, language pundits, secondary grade teachers, physical education teachers, music teachers, craft teachers, art and drawing teachers vide Notification No.768/TRC-1/2018, dated 26.10.2018. It is further stated that the petitioners being eligible candidates for the notified posts, applied for the subject Posts in pursuance of the DSC 20018 issued by the respondents.

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The petitioners have participated in the written test as scheduled by the Government of A.P. for the subject posts. But the results were not declared due to non-related litigation. On 17.12.2021 the Government of AP instructed all the District Educational Officers in the State vide Memo dated 17.12.2021 directing to fill up all the categories of unfilled vacancies under DSC 2018. A few of the petitioners have got SMS from the respondents requesting them to appear before the concerned officials for the certificate verifications. However, the petitioners were orally informed at the concerned location for verification that the vacancies would not be filled up in view of the judgment of the Hon’ble Supreme Court in Civil Appeal No.3609 of 2002 and 7049 of

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2002 dated 22.4.2020, wherein it was held that the appointments made pursuant to G.O.Ms.No.3 dated 10.01.2000 issued by the State of A.P providing 100% reservation of the ST candidates would be saved. But the judgment of Hon’ble Supreme Court referred to above is not applicable in the present case and the posts which were notified in the year 2018 and to which examination was already conducted shall be regulated by the laws applicable at that point in time. Questioning the action of the respondents, the petitioners filed the present writ petition.

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Counter affidavit is filed by the 4^th respondent while denying all the allegations made in the petition contended that as per the Supreme Court judgment on G.O.Ms.No.3 Social Welfare (TW.SER.II) department, dated 10.01.2000 in Civil Appeal No.3609/2002 and 7040/2002, dated 22.04.2020 all those appointments made in excess of 50% from 1986 upto the date of judgment are saved. Any appointment made in excess of 50% rule after 22.4.2020 is violation of the Supreme Court judgment and as such not sustainable and in view of the condition imposed by the Supreme Court while saving the appointment made in

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excess of 50%, directed not to make any future appointments from the said list of DSC 2018 if it is not already done. It is further stated that the Director, Tribal Welfare, A.P. has addressed a letter vide Lr.Rc.No. (1144267)SOWO3-14021(32)/12/2020-K SEC, dated 22.06.2021 to the Director of School Education, A.P. requested to follow the said Govt. Memo for further appointments in DSC 2018 in respect of Scheduled area without fail. In view of the clarification issued by the Tribal Welfare Department, the respondents have issued certain instructions vide Memo No.ESEO1-SEDNOCSE(RECT)/ 96/2021-Exams, dated 10.12.2021 to the Director of School Education, A.P. to follow the instructions issued in the Government Memo No.1265257/TW.Edn.1/2020, dated 18.04.2021 for further appointments of teachers in DSC 2018.

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The 3^rd respondent has communicated the above instructions vide ESEO2-20021.26/2019 RECTMT-CSE, dated 20.12.2021 for taking necessary action as directed by the Government to fill up of vacancies of DSC 2018 and

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requested to follow the said orders scrupulously without fail and without any deviation.

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Additional counter affidavit is filed by the 4^th respondent on behalf of the respondents No.2 and 3 reiterating all the averments made in the counter affidavit and contended that after receipt of the instructions of the 3^rd respondent dated 20.12.2021 the respondents have not taken up any counseling for appointments to the any tribal area including School Assistant (Telugu) and Language Pandit (Telugu). The selection list of candidates would be discontinued of operation waiting list vide G.O.Ms.No.554, GEN (Admn.) Department, dated 4.12.1998. The appointments are issued in various dates in the July 2021 by the time the 4^th respondent has no knowledge with regard to orders of Hon’ble Supreme court. It is further stated that there were strict instructions not to take up any further selection of candidates pertaining to DSC 2018 or otherwise serious action be taken on the officers and accordingly further selection are stopped.

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Heard learned counsel appearing for the petitioners and the learned Government Pleader for Social Welfare

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appearing for the respondent No.1 and learned Government pleader for School Education appearing for the respondents No.2 to 4.

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Learned counsel for the petitioners argued that the

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Hon’ble Supreme Court directed that the appointments made pursuant to G.O.Ms.No.3 dated 10.01.2000 issued by the State of A.P. providing 100% reservation to the ST candidates would be saved. The application of the directions in the judgment was only prospective in nature and the retrospective application has been specifically excluded form the judgment. The judgment also saved all the appointments made by the State of A.P before the judgment was pronounced. He further argued that in the present case the posts were notified in the year 2018 under the DSC 2018. The judgment of the Hon’ble Supreme Court is not applicable in the present case and the posts which were notified in the year 2018 and to which examination was already conducted shall be regulated by the laws applicable at that point in time. In fact this has also been made clear by the Hon’ble Supreme Court that the judgment

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would be made applicable only prospectively and not retrospectively.

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On the other hand, learned Government Pleader argued that the petitioners are not taken up or selection in DSC 2018 for School Assistant and Language Pandit (Telugu) in East Godavari District under GPA and Tribal Scheduled as per the orders of the Hon’ble Supreme Court and consequential direction of the Government. He further argued that in the notification itself, the respondents specifically notified, that the rules and guidelines, issued from time to time, applicable to the notified posts and as seen from the judgment of Hon’ble Supreme Court, directed to not to fill up any vacancy in future in contravention of the Verdict. Now the petitioners plead that the respondents shall ignore the verdict and appoint the petitioners by deviating the dictum of Hon’ble Supreme Court, which amounts to contempt of Supreme Court orders. As such the plea of the petitioners is untenable under law and the same is liable for dismissal.

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On hearing, this Court observed that subsequent

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to the judgment of the Hon’ble Supreme Court, the

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Government of A.P. and also the Government of Telangana have made appointments unconditionally to posts which were notified before the judgment of Hon’ble Supreme Court. It is also observed that the posts which reserved by 100% as per G.O.Ms.No.3 of 2000 were also cleared by the Government of A.P. and also the Government of Telangana subsequent to the judgment of the Hon’ble Supreme Court. Therefore it is clear that the Government of A.P. is not taking into consideration the judgment of Supreme Court while filling up of posts notified under DSC 2018. This Court further observed that similarly situated persons have filed W.P.No.6745 of 2020 before the High Court for the State of Telangana, wherein the High Court while granting interim orders directed the respondents to fill up the posts in terms of Notification dated 21.10.2017. However, it is made clear that any appointments made will be subject to the result of the writ petition.

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In a case of Chebrolu Leela Prasad Rao and

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others Versus State of A.P. and others¹ , wherein it was held that “ once the reservation has been provided to

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1 2020 SCC OnLine SC 383

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Scheduled Tribes under Article 16(4), no such power can be exercised under Article 16(1). The notification is violative of Articles 14 and 16(4) of the Constitution of India”. Further, it was held that “ fact that a similar G.O. was issued by the erstwhile State Government of Andhra Pradesh in the year 1986, which was quashed by the State Administrative Tribunal, against which an appeal was preferred in this Court, which was dismissed as withdrawn in the year 1998. After withdrawal of the appeal from this Court, it was expected of the erstwhile State of Andhra Pradesh not to resort to such illegality of providing 100% reservation once again. But instead, it issued G.O. Ms. No.3 of 2000, which was equally impermissible, even if the A.P. Regulation of Reservation and Appointment to Public Services Act, 1997 would have been amended, in that event also providing reservation beyond 50% was not permissible. It is rightly apprehended by appellants that the State may again by way of misadventure, resort to similar illegal exercise as was done earlier. It was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney

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(supra) and other decisions holding that the limit of reservation not to exceed 50%. There was no rhyme or reason with the State Government to resort to 100% reservation. It is unfortunate that illegal exercise done in 1986 was sought to be protected by yet another unconstitutional attempt by issuing G.O.Ms. No.3 of 2000 with retrospective effect of 1986, and now after that 20 years have passed. In the peculiar circumstance, we save the appointments conditionally that the reorganised States i.e. the States of Andhra Pradesh and Telangana not to attempt a similar exercise in the future. If they do so and exceed the limit of reservation, there shall not be any saving of the appointments made, w.e.f. 1986 till date. We direct the respondents States not to exceed the limits of reservation in future.”

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Having regard to the facts and circumstances of

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the case and in view of the submission made by both the learned counsels and upon perusing the entire material available on record, this Court is of the considered opinion that, declaring the action of the respondents in not filling up 39 notified/vacant posts in DSC 2018 for the subject posts

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in East Godavari District under GPA and Tribunal Schedule category, as illegal.

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Accordingly, the Writ Petition is allowed. The respondents are directed to fill 39 notified/vacant posts in DSC 2018 for the subject posts in the East Godavari District, within a period of eight (08) weeks from the date of receipt of a copy of this order. There shall be no order as to costs.

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As a sequel, all the pending miscellaneous

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applications shall stand closed.

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______________________________ DR. K. MANMADHA RAO, J.

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Date : -09-2022 Gvl

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HON’BLE DR. JUSTICE K. MANMADHA RAO

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WRIT PETITION No.4791 of 2022

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Date : .09.2022

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Gvl

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Maloth Vinod Kumar v. The State of Andhra Pradesh

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Maloth Vinod Kumar v. The State of Andhra Pradesh

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