D. Laxminarayana, Vs The State of Telangana and 2 others

Petition under Article 226 of the Constitution of^{lndiaprayingthat in the} circumstances stated in the affidavit^{filed therewith,the High Court may be} pleased to it is prayed that the Hon'ble Court may be^pleased to^{issue a Writ or} order or Direction in the nature of^Writ of^{Mandamus declaring the action of the1} and 2 Respondents in not^fonryarding the^{letter of the 3rd Respondentto the} Government of Telangana , with^regard to^{Rule 22 of StatesSub Ordinate Service} Rules which Governs Rule of Reservation^{with reference to notification No Rc No} 600/R and T/Gen1t112006, Dated 29-12-2006^{and the Judgment in WritPetition} No 10277 of 2008, Dated 6-9-2008, for correction^{of Wrong Roster Point starting}

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with 98th point as starting Roster Point of the lst Cycle and by taking the^point No 1 as starting roster point and for the 40 vacancies notified roster cycle should stop at 40th point and at 39th point petitioner is legally entitled as he is from B C D Community and only candidate left un-selected after scoring 179 75 marks after attending Viva-voce, declare such actions of Respondent as arbitrary, violative of principles of natural justice colourable exercise of powers and consequently direct the respondents to select and appoint as Asst Public prosecutor in Zone Vl at roster point 39with reference to notification No Rc No 600/RandT/Genl/1/2006, Dated 29-12-2006 with all consequential reliefs and pass such other order or orders are may deem fit and proper in the circumstances of the case and interest of^justice.

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lA NO: 1 OF 2023

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Petition underSection 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to direct the respondents to select and appoint the petitioner as Assistant Public Prosecutor at 39th Roster Point slot meant for B.C. D General Category as the petitioner hails from the same community by taking correcl roster point as No. lwhich is starting roster point of 100 point for 40 vacancies notified in Zone-Vl roster cycle under rule 22 of State Sub Ordinate Service and pending disposal of the writ petition and pass such other order or orders are may deem fit and proper in the circumstances of the case and interest of^justice

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Gounsel for the Petitioner: SRI D. LAXMINARAYANA

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Counselforthe Respondents No 1 To 3: AGP FOR HOME

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Counsel for the Respondent No 4: Government Pleader For Services (Home) The Court made the following: ORDER

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HON'BLE MRS. JUSTICE^{SUREPALLI NANDA}

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gPEBi

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Heard Sri D. Laxminarayana, learned^Party-in- person, learned Assistant Government Pleader for^Home appearing on behalf of respondent^{Nos.1 to 3 and learned} Assistant Government Pleader for^{Servicesappearingon} behalf of respondent^No.4.

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2

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orayer as under:

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"...to issue a Writ or order or Directionⁱⁿ the^{nature of} Writ of Mandamus declaring tlre action^{of the 1 and 2} Respondents in not forlvarding the^{letter of the 3'd} Respondent to the 4th Respondent^{Chief Secretary} Government of Telangana, with^{regard to Rule 22 of} State Sub Ordinate Service^{Rules which Governs Rule of} Reservation with reference to notification No.Rc.No.600/R&T/Genl/ t/2006,^{Dated 29. 12.2006and} the Judgment in Writ Petition^No.10277 of^{2008, Dated} 6-9-2008, for correction of^{Wrong RosterPoint starting} with^g8th point as starting Roster^Point of^{the 1't Cycle} by continuing state roster^from 98th^{point for the} beginning of selection on zonal^merit and by^takingthe point No.1 as starting roster point and for the⁴⁰ vacancies notified roster cycle should^stop at^{40th point} and at 39th point^petitioner is^{legally entitledas he is}

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)

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from BC-D Community and only candidate left unselected after scoring L79.75 marks after attending Viva voce and to set aside the rejection order of the 1tt Respondent with reference letter No.330/Counrts.Al /20L6 dated 06.05 .2017, as the 4th respondent is the only authority empowered to consider petitioner's representation which is in violation of the interim orders of this Hon'ble Court in W.P.M.P.No.5L673 of 2Ot6 in W.p.No.41919 of 2016 filed by the petitioner and respondent No.1 is not having any authority to consider petitioner's representation and to pass non speaking orders as it requires correction to the tampered reservation schedule under rule 22 of State Sub-ordinate service rules because the Government is the rule making authority and it is the authority to evolve policies there under, declare such actions of Respondent as arbitrary, violative of principles of natural justice colourable exercise of powers by setting aside the rejection order of the 1't respondent with reference letter No.330/Courts/A1120L6, dated 06.05.2017 and consequently direct the respondents to select and appoint as Assistant public prosecutor in Zone VI at roster point 39 with reference to notification No.Rc No.600/R&T/Genl/L/20O6, Dated 29-12-2006 with ail consequential reliefs and pass such other order...,,.

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The case of the petitioner, in brief, is that the respondents

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are implementing authority of the Government poticies. The impugned notification is the 1't notification with reference

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No. Rc. No. 60 O/R&T/Gen^{l/ 1/2006}

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dated 29.12.2006 to^{begin witlr selectionson Zonal Merit as per} Presidential Order 1975^{implementing Judgment in} W.P.No. t0277 of 2008 dated^{06.09.2008. The respondentsin} ZoneVI started the 1't^{cycle with gBth point instead of *1st" point} for 40 vacancies notified^{due to the sameroster cycle could not} reach slot 39^{point which is meant for B.C.(D) categoryto which} the petitioner belong^{to, consequently,the petitioner was denied} his legal right of appointment^{to the post of Assistant Public} Prosecutor by the resPondents.

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It is the further the^{case of the petitioner that the} petitioner's plea to treat the Assistant^{Public Prosecutor post as} Zonal Post with retrospective^{effect in tune with Rule 22 of State} Subordinate Service^{Rules was dismissedfinally through this} Hon'ble Division Bench order^{in Review in I.A.No. L of 2022in} Writ Appeal No.15L2 of^{2018 dated 2L.O4.2022 and now the} respondents are left^{with only option of givingprospectiveeffect} which is mandatory to avoid^{two modesin the sameroster cycle} as per the High court^{order in w.P.No.L0277 of 2008 and} respondents by starting^{with g8th point in Zone VI are following} two modes in the^{same roster cycle violatingthe High Court}

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order in w.P.No.L0277 of 2008. Aggrieved by the same the petitioner filed the present writ petition.

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PERUSED THE RECORD.

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(A) The relevant portion of order impugned vide

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st

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*...with reference to your representations cited, it is to inform that your request for appointment to the post of Assistant public prosecutor has been examined in consultation with the chairman, Telangana State Level potice Recruitment Board, Hyderabad and considered not feasible. Hence, the request of the individual is hereby rejected.,,

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(B) The onofl of e 3td st

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hereunder:

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*...I am to state that Sri D.Laxminarayana in the representation cited has requested to implement the judgment holding the post of Asst. public prosecutor as a zonal with prospective effect or retrospective effect from the date of Judgment dt.6.9.2008 in wp No.1027712008 of Hon'ble High Court of Andhra pradesh.

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In this regard, I am to state that the Government^is the rule making authority and it is the authority to^evolve policies thereunder.

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Flence, I forward here'rvith the representation uvith its enclosure in the reference cited to the Government for necessary action.'

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extracted hereunder:

"5. In reply this respondent submits that the contention of the petitioner that the recruitment agency can not adopt two modes of selection for the same posts is not the decision of the Hon'ble High Court in WP No.10277 of 2008 and batch declared on dt:06.09.2008, it was only the pleadings of the petitioner. The petitioner tried to misguide the Hon'ble Court and wanted to get benefit out of it. The petitioner ought to have raised all the grievances at a time, of failing his first writ petition itself. But he filed the present case after the lapse of L7 years delay. The present writ petition is liable to be dismissed on this ground alone.

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Ci. It is submitted that the respondent states that the case lacks a legitimate cause of action and refers to a specific roster point concerning a vacancy for BC-D^group. In fact in the notification of 2C06, there is a point of BC-D reserved for women that has already been filled. The contention to open a new roster on zonal basis for the notification 2006, does not give much sense at this stage.

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The claim of the petitioner is that if there is a roster point under BC-D, he could have been succeeded and selected, is not a valid reason because the cause of action cannot be built on assumptions and presumptions, this way already considered in the earrier wps filed by the petitioner. Repeatedly filing cases on the same or similar cause of action means bringing multiple petitions against the same defendant based on the similar set of facts and legal issues, essentially attempting to re-litigate a matter that has already been decided by a court, which is generally considered an abuse of the legal process.

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The Hon'ble High Court of Andhra pradesh in Wp No.9965 of 2010 dated : 07.L2.2012 fired by this petitioner observing the Hon'ble Apex court earlier judgment stated that when once there is a settred position, it cannot be disturbed after long lapse of time.,,

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The Party-in-person appearing in the present writ petition contends that the petitioner submitted his detailed representation dated 14.09.2016 addressed to the 1'r respondent herein seeking the petitioner,s selection and appointment as Assistant public prosecutor on the ground that previous selections on statewide merit against presidential order 1975 in Zone vI ended at 97th point and by continuing on from g8th point on Zonal merit, recruiting agency brought two modes

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into one roster cycle which^{is forbiddenas per the orders} passed by this Court in W.P.No. L0277 of 2008^{and the said} representation had been acknowle'Jged^{by the office of the 1't} respondent dated 14.09.20L6,^{yet no orders have beenpassed} on the said representation.^{The petitioner earlier filed} W.P.No.41919 of 20L6 and this^{Court vide order dated} 10.03.2017 directed the 1't^{respondent herein to consider the} representation of the^{petitioner dated 14.09.20L6 and dispose of} the same in accordance with^{law, within a periodof two months} from the date of receipt of a^{copy of this order, and in pursuance} to the said order the 1't^{respondentherein passedordervide} reference letter No.33O/Courts.All20t6^{dated 06.05.20L7} stating that the representation of^{the petitioner for appointment} to the post of Assistant Public^{Prosecutor had been examinedin} consultation with the Chairman,^{TelanganaStateLevel Police} Recruitment Board, Hyderabad and^{consideredas not feasible,} and the request of the^{petitioner accordinglyhad been rejected.'}

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The party-in-person brings to^{the notice of this Court,the} letter dated 12.05.2016 of the^{3'd respondenthereinaddressed} to the 1't respondent herein^{wherein the representation of the} petitioner dated 09.03.2016 had been forwarded^withits enclosures, stating that the^{Government is the rule making}

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authority and hence the Government alone is the competent authority to consider the request of the petitioner seeking implementation of the Judgment dated 06.09.2008 passed in w.P.No.t0277 of 2008, since the Government is the authority to evolve policies thereunder. But however, inspite of the specific request made by the 3'd respondent to the 1't respondent herein, the said letter dated 12.05.2016 duly enclosing the representation of the petitioner dated 09.03.2016 had not been considered by the l't respondent herein nor had been referred in the order impugned dated 06.05.20L7 passed by the 1't respondent since there is no discussion about the same either in the contents of the impugned letter dated 06.05.2017 of the 1't respondent nor the same is indicated in the reference column of the said letter. Therefore, the party-inperson contends that the petitioner is entifled for the relief as prayed for in the present writ petition.

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A bare perusar of the order impugned dated 06.05.2017 passed by the 1st respondent clearly indicates that the representation of the petitioner dated 09.03.2016 as forwarded by the 3'd respondent to the l"t respondent had not been considered by the l"t respondent while passing the orders on petitioner's subsequent

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representation dated 14.09.2016 seeking

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appointment as Assistant Public Prosecutor and the order impugned had been passed mechanically without application of mind, without assigning any reasons in a routine casual manner without even considering (or) making any reference to the letter dated 12.05.2016 enclosed with the earlier representation of the petitioner dated O9.O3.2O15 forwarded by the 3'd respondent to the 1't respondent nor the petitioner's latest representation dated 14.09.2O15, and hence therefore, since the order impugned admittedly is not a speaking order, this Court opines that the subject issue needs reconsideration of the petitioner's representation dated 14.09.2016 addressed to the 1"t respondent herein duly taking into consideration the letter dated 12.05.2016 enclosed along with the petitioner's earlier representation dated 09.03.2016, forwarded by the 3'd respondent to the 1st respondent.

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Learned Assistant Government Pleader appearing on behalf of the respondents placing reliance on the averments made at para Nos.S, 6 and 9 of the counter affidavit filed on behalf of the l't respondent contends that the petitioner is not entitled for the relief as prayed

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for in the present writ petition and writ petition is liable to be dismissed.

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This court opines that the pleas put forth by the learned counsel appearing on beharf of the 1tt respondent by placing reliance on the averments made in the counter affidavit filed on behalf of the 1't respondent are untenable and are rejected in view of the simple fact as borne on record that the order impugned passed by the 1.t respondent does not assign a single reason.

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Takinq into consideration:

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(A) The aforesaid facts and circumstances of the

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case,

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' (B) The submissions made by the learned counsel appearing on behalf of the petitioner and the learned Assistant Government^pleader appearing on behalf of the respondents,

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(C) The contents of the letter dated 12.05.2016 forwarded by the 3'd respondent to the lrt respondent duly enclosing the petitioner's representation dated 09.03.2016 with its enclosures,

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(D) The order impugned dated 06.05.2017

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which admittedly as borne on record as bereft of reasons,

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(E) The averments of the counter affidavit filed by the 1't respondent (referred to antl extracted above),

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(F) The fact that the letter clated 12.05.2016 forwarded by the 3'd respondent to the l"t respondent duly enclosing petitioner's representation dated 09.03.2016 with its enclosures had not been considered by the 1't respondent while passing the order impugned by the 1tt respondent nor had even been referred to by the 1't respondent in spite of the specific request made by the 3'd respondent to the l"t respondent,

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(G) The fact that the pleas put forth by the petitioner vide representation dated 14.09.2016 addressed to the 1't respondent herein had not been considered at all and the fact that the order impugned is bereft of reasons,

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The Writ Petition is allowed. The order impugned vide Memo No.330/Courts ALI}OLG dated 06.05.2017, \ \ passed by the 1"t respondent is set aside and the matter is remitted to the 1"t respondent to consider the request of the petitioner for selection and appointment of the

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petitioner as Assistant Public prosecutor duly taking into consideration the petitioner,s detailed representation dated 14.09.2016 addressed to the l"t respondent herein which had been acknowtedged on 14'09.2016 by the l't respondent herein and arso the specific request made by the 3'd respondent herein to the I't respondent vide retter dated 12.os.20r6 dury encrosing the petitioner's eartier representation dated 09.03.2016 with its supportive documents, and reconsider and decide the subject issue pertaining to the request of the petitioner for appointment to the post of Assistant pubric Prosecutor, in accordance to raw, in conformity with principres of naturar justice by providing an opportunity of personar hearing to the petitioner and pass appropriate ord.ers within a period of four (o4) weeks from the date of receipt of copy of the order ancr dury communicate the decision to the petitioner. However, there sha, be no order as to costs.

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The miscellaneous a lications if

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closed.

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SD/.AH D ABDULLAH KHAN ISTANT REGISTRAR

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//TRUE COPY/

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SECTION OFFICER

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To,