THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION No. 11592 OF 2013
O R D E R:
This Writ Petition is preferred by the Andhra Pradesh State Civil Supplies Corporation Limited SC/ST Employees’ Welfare Association, in the company of nine other individuals, seeking a writ of mandamus for declaring the action of the respondents in issuing the impugned notifications on 16.03.2013, proposing to fill up the posts of Senior Officer Grade-II, Assistant Manager (Accounts), Assistant Manager (Technical), Assistant Manager (General), Accountant Grade-I, Technical Assistant Grade-I, Assistant Grade-I and Assistant Grade-I respectively by direct recruitment instead of filling up the posts by way of promotion with available qualified in-service candidates such as petitioners 2 to 10 and other members of the 1st petitioner association as being arbitrary, illegal, discriminatory and contrary to Regulation 7(b) of the Andhra Pradesh State Civil Supplies Corporation Limited Employees’ Recruitment and Service Regulations besides being in violation of Articles 14 and 16 of the Constitution of India and also for consequential relief based thereon.
The 1st respondent is the Andhra Pradesh State Civil Supplies Corporation Limited, a Government of Andhra Pradesh undertaking. It answers the description of the ‘State’ for the purpose of Article 12 of our Constitution and consequently, it is mandated to comply with the other provisions contained in Part III of the Constitution.
The Andhra Pradesh State Civil Supplies Corporation Limited, the 1st respondent herein, exercising the power available to it under Article 77 of the Memorandum of Articles of Association, framed the Andhra Pradesh State Civil Supplies Corporation Limited Employees’ Recruitment and Service Regulations (for short referred to as ‘the Regulations’). It will be important to notice Regulation 3, which has classified the various posts in the service of the Corporation to fall in Class-I, Class-II, Class-III and Class-IV. Posts of Senior Officers Grade-I and Grade-II fall within Class-I, while posts of Junior Officers (Assistant Managers) and Assistant Executive Engineers fall in Class-II and all other employees in the cadres of Grades-I, II and III (Assistants, Accountants, Technical Assistants and Stenographers, etcetera) fall in Class-III. In Class-IV, all employees below the cadre of Grade-III do fall. Regulation 4 dealt with the methods of recruitment. It specifies that appointments may be made to any posts in the Corporation by direct recruitment, promotion, deputation from other sources, namely Government, Central and State and Commercial Organization and institutions substantively under the control of the State and Central Governments or on contract basis or by transfer from other organizations or State Government on conditions agreeable to the Managing Director or Board of Directors, as the case may be. It was also further specified therein that the method of recruitment to such posts specified in column (2) of the Annexure to the Regulations shall be as shown in the corresponding entry in column (4) thereof and the qualifications prescribed for each such post shall be as shown in the corresponding entries in columns (5) and (6) for the purpose of promotions and columns (7) and (8) in the case of appointments by direct recruitment. Similarly, it is stated that the maximum age limit prescribed in column (8) of the Annexure shall be raised uniformly by five years in the case of candidates belonging to Scheduled Castes, Scheduled Tribes and Backward Classes for direct recruitment to services and posts under the Corporation. Rule of reservation amongst various social sectors, such as Scheduled Castes, Scheduled Tribes and Backward Classes is also made available by following strictly the roster points indicated in Annexure II of the Regulations. It was further made clear that the vacancies unfilled for want of candidates shall be carried forward in accordance with the orders passed by the State Government which are in force from time to time. Regulation 6 dealt with the power to make appointments. It is specified therein that the authority competent to make appointment to the posts of the description specified in column (1) of the table that was incorporated therein, shall be the one specified in column (2) thereof. It is not in dispute that the Managing Director is the competent authority for making appointments to Class-II posts and for Class-III and Class-IV posts also. So far as Class-I posts are concerned, the appointing authority is the Board of Directors of the Corporation. Regulation 7 dealt with the exercise of certain powers of appointing authority by higher authorities. It is specified therein that the powers conferred on the appointing authorities other than the Board may be exercised also by any higher authority to whom the appointing authority is administratively subordinate. Regulation 7(b) is relevant for deciding the lis in this case and therefore, it is appropriate to quote it.
“ (b) Subject to the provisions of the regulations in Annexure, any person who is already in the service of the Corporation may be considered for appointment to a post filled by direct recruitment.”
It is contended by Sri D. Linga Rao, learned counsel for the petitioners that the impugned notifications, dated 16.03.2013 are issued by and in the name of Sri D. Varaprasad, Vice Chairman and Managing Director of the 1st respondent Corporation, whereas six posts of Senior Officers Grade-II are also notified for recruitment and consequently, the Managing Director of the Corporation is usurping the powers exercisable by the Board of Directors. It is contended that the Managing Director, being subordinate administratively to the Board of Directors, cannot seek to exercise the powers of the appointing authority for Senior Officers Grade-II posts. Any such action by him will not only be contrary to Regulation 7(b), but would also be in violation of the principles of administrative subordination.
I am afraid that this contention is not having any merit.
The notification issued amounts to an invitation to the prospective candidates to respond.
The selection process will be undertaken subsequent thereto. The selected candidates will get an opportunity of being appointed to the service of the 1st respondent Corporation thereafter.
Therefore, issuing a notification inviting applications for making recruitment is not the same as that of appointing a candidate to the post of a Senior Officer Grade-II in the service of the 1strespondent Corporation.
In my opinion, such a stage has not yet arrived. Only after the selections, the necessity or the need to make appointments would arise. At that stage, the appropriate appointing authority, I am sure, would apply his mind and make the necessary appointments.
A mere issuance of a notification inviting applications from prospective candidates does not ensure or guarantee the appointments also to be made by the same agency, which has issued the notification.
Illustratively put, several recruiting agencies, such as Union Public Service Commission or Andhra Pradesh Public Service Commission or Banking Recruitment Boards or District Selection Committees would be issuing the necessary notifications inviting applications from prospective candidates for recruitment.
Only after the selections are finalized, the necessary exercise for appointing the selected candidates should be carried out by the respective appointing authorities. Therefore, the fact that the Managing Director of the 1st respondent has issued the notification need not reflect that he is usurping the powers exercisable by the Board of Directors of the Corporation. Therefore, I have no hesitation to reject the said contention.
The next contention canvassed before me was that in accordance with Regulation 4 read with Annexure to the Regulations, the posts of Senior Officers Grade-II are liable to be filled in by following the three methods specified in column (4). They are : promotion, direct recruitment or by transfer. Column (6) specified the qualifications necessary to be possessed by the internal candidates for the purpose of promotion, but it also specified the ratio amongst the three internally competing groups. Insofar as column (7) of the Annexure to the Regulations is concerned, the qualifications necessary to be possessed by candidates, who are desirous of getting directly recruited, have been specified. A comparison of the entries contained in Columns (6) and (7) of the Annexure to the Regulations makes the position extremely clear that the qualifications prescribed in column (7) are entirely distinct and separate from those specified in column (6) and hence, all those candidates, who also possess the qualifications set out in column (7) of the Annexure to the Regulations, can also respond to the notification. That is the purport of Regulation 7(b), which has been noticed a little earlier. The Corporation cannot deny the right of an internal candidate to compete along with the candidates from the open market for direct recruitment. The only necessity for them was that they must satisfy the qualifications prescribed in column (7) of the Annexure to the Regulations. The contention canvassed before me by Sri D. Linga Rao was that first the Corporation must necessarily fill up all posts by promotion because the source of recruitment “promotion” has been specified ahead of direct recruitment or by transfer. Therefore, only in the event of non-availability of internal candidates for promotion to Senior Officers Grade-II, the 1strespondent Corporation can resort to direct recruitment.
I am afraid that this contention is also merit less for,
Regulation 4 made it abundantly clear that the Corporation has the right to make appointments by following any of the three methods, namely direct recruitment, promotion or deputation from any other source, which is also called as recruitment by transfer.
The Regulations have not specified any percentage to be adopted between promotion and direct recruitment nor was any cyclic rotation of vacancies. Various sources of recruitment being adumbrated in the Regulations.
Therefore, a discretion is vested in the 1st respondent Corporation to choose one of the three sources of recruitment and hence, the notification issued by the 1st respondent Corporation proposing to make direct recruitment cannot be declared as contrary to the Regulations framed by the Corporation itself.
Above all, if the Corporation is now proposing to fill up vacancies, which are notified as backlog vacancies, it signifies that the Corporation could not find suitable candidates earlier belonging to the respective categories, such as Scheduled Castes or Scheduled Tribes to fill up to the extent of the quota available to them. In such circumstances, falling back upon the option for resorting to direct recruitment will certainly brighten up the prospects of securing candidates belonging to Scheduled Castes and Scheduled Tribes in good numbers.
When Regulation 7(b) is borne in mind, even those internal candidates belonging to Scheduled Castes and Scheduled Tribes, who are also otherwise eligible to compete by possessing the qualifications set out in column (7) for direct recruitees, their chances for selection also enable the Corporation to spread the canvas a little more wider.
Therefore, looked at from any perspective, the impugned notifications issued by the Corporation proposing to fill up various vacancies by the method of direct recruitment cannot be faulted at all.
Hence, this Writ Petition is devoid of any merit and it is accordingly, dismissed at the admission stage. No costs.
It is needless for me to observe that not only petitioners 2 to 10 but any other eligible candidate, who is serving the 1strespondent Corporation but belonging to Scheduled Castes or Scheduled Tribes as the case may be, may also appropriately respond to the notification by satisfying the 1st respondent Corporation about the qualifications possessed by them and in such an event, I am equally confident that the 1st respondent Corporation will not refuse to consider their cases for direct recruitment as well.
The miscellaneous applications, if any shall also stand dismissed, as a consequence of dismissal of the Writ Petition.
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NOOTY RAMAMOHANA RAO, J
22nd April 2013
Issue CC by tomorrow.
ksld
THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO
CIVIL REVISION PETITION No.1040 of 2010
January 31, 2013
SP/KKM
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