WP/14593/2006 of The Director of Health, Vs M. Shyam Sunder, on 31 December 2007

1) W.P. No.14414 of 2006:

Between:

The Director of Health, Andhra Pradesh,Hyderabad & another

and

…Petitioners

P.Ramulu & 3 others

…Respondents

2) W.P. No. 14583 of 2006:

Between:

The Director of Health, Andhra Pradesh,Hyderabad & 2 others …Petitionersand M.Sreedhar & another

3) W.P. No.14596 of 2006:

…Respondents

Between:The Director of Health, Andhra Pradesh,Hyderabad & 2 others …Petitioners andM.Hanumanth Reddy …Respondent4)W.P. No.14616 of 2006:Between:The Director of Health, Andhra Pradesh,Hyderabad & 2 others …Petitioners andG.Nanda Kishore …Respondent5)W.P. No.14634 of 2006:Between:The Government of Andhra Pradesh, rep. byits Principal Secretary to Government, Health, MedicalAnd Family Welfare Department, Secretariat,Hyderabad & 2 others …Petitioners andT.Ramesh Kumar & 2 others …Respondents6)W.P. No.14895 of 2006:Between:The Government of Andhra Pradesh, rep. byIts Principal Secretary to Government, Health, Medical And Family Welfare Department, Secretariat,Hyderabad & 2 others …Petitioners andI.Pramod Kumar …Respondent7)W.P. No.14941 of 2006:Between:The Government of Andhra Pradesh, rep. byIts Principal Secretary to Government, Health, MedicalAnd Family Welfare Department, Secretariat,Hyderabad & 2 others …Petitioners andP.Ramnath & 2 others …Respondents8)W.P. No.14894 of 2006:Between:The Government of Andhra Pradesh, rep. byIts Principal Secretary to Government, Health, MedicalAnd Family Welfare Department, Secretariat,Hyderabad & 2 others …Petitioners andP.Venkateshgoud & 2 others …Respondents

Between:

The Director of Health, Andhra Pradesh,Hyderabad & 2 others

and

…Petitioners

Y.Venkateswarlu & another

…Respondents

10) W.P. No. 14593 of 2006:

Between:

The Director of Health, Andhra Pradesh,Hyderabad & another

and

…Petitioners

M.Shyam Sunder & 3 others

…Respondents

THE HON’BLE SRI JUSTICE D.S.R.VARMAAND

THE HON’BLE SRI JUSTICE K.C.BHANU

WRIT PETITION Nos. 14414 of 2006, 14583 of 2006, 14596 of 2006, 14616 of 2006, 14634 of 2006, 14895 of2006, 14941 of 2006, 14894 of 2006, 13435 of 2006 and 14593 of2006

COMMON ORDER:(per the HON’BLE SRI JUSTICE K.C.BHANU)

1. Common question arises in all these Writ Petitionsand therefore, they are being disposed of by this CommonOrder.

2. The brief facts that are necessary for disposal of theseWrit Petitions may be stated as follows:

The Government of Andhra Pradesh accordedpermission to the Director of Medical Education, AndhraPradesh, Hyderabad for filling up of posts of Multi PurposeHealth Assistants (Male) [for short, ‘MPHA (Male)’] throughG.O. Rt. No.887, dated 18.05.1999. The issue in these WritPetitions is with regard to filling up of the said posts inMahaboobnagar district, wherein 55 vacancies were notifiedby prescribing certain qualifications. The selection has takenplace and selected list of 40 members has been publishedon 6.11.1999. Out of the 40 candidates, 26 persons wereappointed through proceedings dated 11.11.1999. Thereafter, 11 more candidates were appointed throughproceedings dated 28.03.2001. As per the orders of theAndhra Pradesh Administrative Tribunal, Hyderabad (forshort, ‘the Tribunal’) dated 01.08.2001 in O.A. Nos. 3265 of1999 and batch, the Government also accorded permissionto appoint 18 more candidates, who have come up forselection in existing vacancies. Thus, in all, all the 55vacancies, which were notified, have been filled up i.e. 26persons through proceedings dated 11.11.1999, 11 personsthrough proceedings dated 28.03.2001 and 18 personsthrough proceedings dated 05.12.2001.

3. The appointment of persons, who secured educational qualification in government institutions, and non-selection ofpersons who have obtained the qualification in privateinstitutions, was the subject matter of O.A. No.3265 of 1999and batch, wherein the Tribunal directed the respondentstherein to consider the cases of all the persons who wereselected and who have secured highest marks, in theexisting vacancies, irrespective of their obtaining thequalification either from private institutions or governmentinstitutions.

4. Some of the candidates filed O.A. Nos. 5653 of 2002,3426 of 2002, 4529 of 2002, 4566 of 2002 (hereinafterreferred to as ‘the first batch of applications’) seeking adirection to set aside the proceedings dated 18.03.2002,23.04.2002 and 04.05.2002 issued by the District Medical &Health Officer, Mahaboobnagar as illegal and arbitrary on theground that those applicants secured more marks than theselected candidates. Their contention is that they were fullyeligible and qualified to be appointed as MPHA (Male)having obtained certificates from various institutions whichare recognized by the Government of Andhra Pradesh; thatthey were denied appointments on the ground that theyobtained the qualification from the institutions which were notrecognized, and that the persons, who secured lessermarks, were appointed on the ground that they obtaineddiploma certificate from recognized governmentinstitutions. 5. The respondents filed their counter in the O.As. interalia admitting issuance of notification on 08.06.1999 forrecruitment of para-medical staff, which includes

MPHA(Male). It is further stated that the candidates whohave obtained the requisite qualifications from the privateinstitutions were not allowed to appear for the examinationfor filling up of those posts, but some of the candidatesobtained interim directions to write the written examination. Itis further stated that the case of the applicants could not beentertained as their names could not find place in theselection list or in the list of 55 vacancies which were filledup.

6. Basing on the material on record, the Tribunal, by itscommon order dated 10.03.2005, allowed the above O.As.

with the following direction:

“… the respondents are directed to consider the case ofthe applicants for appointment as MPHA(M). Whiledoing so, the authorities should look into the fact whetherthe applicants secured more marks than the 20candidates who were appointed having studied in PrivateInstitutions. If the applicants secured lesser marks thanthose 20 candidates, then the case of the applicantsneed not be considered and if the applicants securedhigher marks they should be considered for appointmentand necessary orders should be passed within a periodof six weeks from the date of receipt of a copy of thisorder.”

7. In respect of the first batch of applications, the learnedSpecial Government Pleader contended that it is not indispute that all the notified vacancies were filled up, andthere were no vacancies to be thrown upon to the aspirantsfrom the said notification; that the vacancies notified cannotbe enlarged beyond the figure already notified; thatthereafter, the Government decided to fill up the existing vacancies on contract basis; that the persons who wereappointed securing lesser marks than the applicants werenot added as necessary parties and there was no challengeto the selection process and the appointments madethereunder. Hence, he prayed to set aside the impugnedcommon order of the Tribunal.

8. In respect of Writ Petition Nos. 14593 of 2006 andbatch, it is contended by the learned Special GovernmentPleader that the O.As. are clearly barred by limitation and theapplicants therein have not come to the court within theperiod of one year and they have not filed any application tocondone the delay; that the fate of the respondents in theseWrit Petitions would depend upon the decision that may berendered in Writ Petition Nos. 14634 of 2006 and batch.

9. On the other hand, the learned counsel appearing forthe respondents in all the matters contended that therespondents have secured more marks than those personswho were appointed in the second list, and therefore therespondents are put to loss, and injustice is caused to thembecause the appointed persons secured lesser marks thanthe respondents; that though the respondents maderepresentations to the Government to consider their cases,the same have not been considered and so the respondentshad no other go, but to approach the Tribunal for redressal oftheir grievance. It is further contended that merit should bethe criterion for making appointments and when the merithas not been considered by the concerned authorities, thenit can be said to be discrimination; that after considering thematerial on record, the Tribunal rightly allowed the O.As., and that as there is no error apparent on the face of the record,the question of exercising jurisdiction under Article 226 of theConstitution of India does not arise. Hence, he prayed todismiss the Writ Petitions.

10. There cannot be any dispute that the Court issuing awrit of Certiorari acts in a supervisory and not appellatejurisdiction. Whenever any body of persons (a) having legalauthority, (b) to determine questions affecting rights ofsubjects; (c) having the duty to act judicially, (d) act in excessof their legal authority, certiorari may be issued to quash adecision that goes beyond jurisdiction.

Further, even where the Tribunal has acted within itsjurisdiction, certiorari will lie in the following cases ofcomplete failure of justice.

(a) where the order of the Tribunal has been obtained byfraud, collusion or corruption;fraud, collusion or corruption; (b)where the Tribunal has acted contrary to the principlesof natural justice;of natural justice;

(c) where there is an error apparent on the face of therecord;record; (d)where the Tribunal’s conclusion is based on noevidence whatever;evidence whatever; (e)where the decision of the Tribunal is vitiated by anerror of law apparent on the face of the record, asdistinguished from an error of fact.error of law apparent on the face of the record, asdistinguished from an error of fact.

11. Bearing the above principles in mind, now it has tobe seen whether the Tribunal acted within its jurisdiction todecide the issue or it has acted in excess of its jurisdiction ?12. In the first batch of applications, the proceedings dated18.03.2002, 23.04.2002 and 04.05.2002 issued by theDistrict Medical & Health Officer, Mahaboobnagar, are under challenge. There is no dispute that originally theGovernment of Andhra Pradesh accorded permission to theDirector of Medical Education, Andhra Pradesh, to fill up 55vacancies of para-medical staff viz. MPHA(Male), inMahaboobnagar district. It is also not in dispute that thequalification required for the said post is one year MPHAtraining course from an institution recognized by theGovernment of Andhra Pradesh. However, some of thecandidates, who obtained certificates from the institutions,which are not recognized by the Government of AndhraPradesh, have approached the Tribunal and obtained interimorders to permit them to participate in the selection process. The Government also issued a memo stating that thecandidates, who have obtained their certificates fromunrecognized institutions, need not be considered forappointments. But, ultimately, the said issue has been set atrest by the Tribunal by its order dated 01.08.2001 inO.A.No.3265 of 1999 & batch and directed the respondentstherein to consider all the persons who were selected andwho have secured higher marks irrespective of theirobtaining qualifications i.e. either from private or governmentinstitutions, in the existing vacancies. The respondentsherein are claiming that they have secured more marks thanthe persons who were appointed. They maderepresentations to the Government ventilating theirgrievances. But, the same was rejected by the impugnedproceedings dated 18.03.2002 stating that they were notincluded in the selection list, while setting out reasons for appointment of 26 persons at one point of time, 11 personsat other point of time and 18 persons at another point oftime. The petitioners herein did not even deny that therespondents herein did not secure more marks than thecandidates who were selected and appointed. On thatpremise, the Tribunal gave a finding, which reads as under:

“.. But the fact remains, which is undisputed, thatthe applicants seems to have secured more marks thanthose persons who were appointed in the selection list.…”

13. Further more, the applicants in the first batch ofapplications viz. O.A. Nos. 5653 of 2002, 3426 of 2002, 4529of 2002, 4566 of 2002, have not challenged the selectionprocess. No doubt, incidentally they have stated that someof the selected candidates secured less marks than theapplicants. It is not the case of the applicants in the firstbatch of applications that they should be appointed withinthe notified 55 vacancies by taking into merit asconsideration and selection of those candidates, whosecured less marks than the applicants and appointed,should be cancelled. It is also not in dispute that thecandidates allegedly secured lesser marks than thecandidates who were appointed, were not impleaded asparty-respondents in any one of the first batch ofapplications. Therefore, the question of appointing theseapplicants in the notified 55 vacancies does not arise.

14. The learned Special Government Pleader placed astrong reliance on a decision in Rajesh Kumar Daria v.Rajasthan Public Service Commission & others[[1]]wherein it is held as follows:

“… On completion of the selection process, 97candidates were appointed in the year 2002 and havebeen serving as judicial officers for more than fiveyears. There has also been a subsequent selection andappointments in the year 2005. Further all the selectedcandidates are not impleaded as parties. Even fromamong the original ten writ petitioners, only seven arebefore us. On the facts and circumstances, we do notpropose to disturb the selection list dated 30.12.2001 orinterfere with the appointments already made inpursuance of it. ..”

15. In another decision in Sandeep Singh v. State ofHaryana & another,[[2]]relied on by the learned SpecialGovernment Pleader, it is held as follows:

“… That apart, even on first principle, it appears to us tocommend that the vacancies available in any particularservice till the date of interview at least should be filledup from the very same examination unless there is anystatutory embargo for the same. In the case on hand, nostatutory embargo has been pointed out to us. ..”

16. In another decision in State of U.P. & others v.Rajkumar Sharma & others[[3]], the Apex Court held as follows: (para 13)

“Filling up of vacancies over and above the number ofvacancies advertised would be violative of fundamentalrights granted under Articles 14 and 16 of theConstitution. (See Union of India v. Ishwar Singh Khatri(1992 Supp. (3) SCC 84); Gujarat State Dy. ExecutiveEngineers’ Assn. V. State of Gujarat (1994 Supp. (2)SCC 591); State of Bihar v. Secretariat Asstt.Successful Examinees Union, 1986 [(1994) 1 SCC 126];Prem Singh v. Haryana SEB [(1996) 4 SCC 319];Surinder Singh v. State of Punjab [(1997) 8 SCC 488];and Kamlesh Kumar Sharma v. Yogesh Kumar Gupta[(1998) 3 SCC 45].”

17. From the above decisions, it is clear that only notifiedvacancies should be filled up and filling up of vacancies,which are not notified, would be violative of fundamentalrights guaranteed under Articles 14 and 16 of theConstitution of India. It is not in dispute before this Courtthat, in the case on hand, all the 55 notified vacancies werefilled in under 3 spells, last spell of candidates beingappointed by proceedings dated 05.12.2001 by theGovernment.

18. The direction given by the Tribunal is that theapplicants in the O.As., if secured higher marks than theappointed candidates, their cases should be considered forappointment. Having given a finding that notified posts werealready filled up, the Tribunal ought not to have given such adirection. So, the question of considering the cases of theapplicants for appointment as MPHA (Male) does not arisebecause by the time they approached the Tribunal, all thenotified posts were already filled up. None of the selectedcandidates was a party-respondent to the first batch ofapplications. No doubt, the Court can mould the relief fordoing a substantial justice to the parties. On the ground thatthe applicants in the first batch of applications securedhigher marks, the same cannot be given effect to theapplicants because it would, at this stage, affect the rightaccrued to the candidates who were already appointed. So,in the absence of any challenge to the selection process,such an exercise cannot be done even by the Tribunal.

19. We are unable to accept the contention of the learned counsel for the respondents herein that the respondents,who secured higher marks than the selected candidates, areto be appointed within the notified posts, for the simplereasons, firstly, that the selection process is not underchallenge and secondly that the selected candidates whowere subsequently appointed, were not impleaded as partiesin any one of the first batch of the applications. Therefore,the order of the Tribunal in the first batch of applications isvitiated by the error of law apparent on the face of recordcalling for interference by this Court.

20. Nearly, after lapse of 6 years, some of thecandidates filed O.A.Nos. 1041 of 2005, 4501 of 2005, 5232of 2005, 5562 of 2005, 5625 of 2005 and 5894 of 2005(hereinafter referred to as ‘the second batch ofapplications’). The prayer sought for in these O.As. is todeclare the action of the respondents in not considering thecases of applicants therein for appointment as MPHA(Male)though they are more meritorious than several selectedpersons and also not considering their cases on par withsimilarly placed persons by extending the benefit of theorders dated 10.03.2005 in O.A. No.5653 of 2002 & batch infavour of the applicants, as illegal, arbitrary, discriminatoryand for consequential direction to appoint them as MPHA(Male). The Tribunal allowed the O.As. in terms of the ordersin O.A. No.5653 of 2002 & batch, dated 10.03.2005 and theconsequential corrigendum issued on 11.3.2005 directingthe office to enclose a copy of the orders in the said O.A andthe corrigendum.

21. On two grounds, the case of applicants in the second batch of applications need not be considered. Firstly, on theground of delay and lapses, and secondly that the order ofthe Tribunal in the second batch of applications is basedupon the judgment in O.A. Nos. 5653 of 2002 & batch dated10.03.2005 which is set aside as discussed supra.

22. With regard to lapses, sub-section (2) of Section 20 ofthe Administrative Tribunals Act, 1985, reads as follows:“For the purposes of sub-section (1), a person shall bedeemed to have availed of all the remedies available tohim under the relevant service rules as to redressal ofgrievances- (a) if a final order has been made by the Government orother authority or officer or other person competent topass such order under such rules, rejecting any appealpreferred or representation made by such person inconnection with the grievance.

(b) …”

Section 21 of the Act, prescribes limitation in that

behalf. Sub-section (1)(a) thereof reads as follows:

“A Tribunal shall not admit an application, - (a) in a case where a final order such as is mentioned inclause (a) of sub-section (2) of section 20 has beenmade in connection with the grievance unless theapplication is made, within one year from the date onwhich such final order has been made;”clause (a) of sub-section (2) of section 20 has beenmade in connection with the grievance unless theapplication is made, within one year from the date onwhich such final order has been made;”

23. It is not the case of applicants in the second batch ofapplications that they made applications for condonation ofthe delay and the Tribunal rejected the application withoutexamining the grounds for delay occasioned by them.

24. In this context, the learned Special GovernmentPleader relied on a decision in Ramesh Chand Sharma v.Udham Singh Kamal & others[[4]]wherein it is held as follows:

“… It was open to the first respondent to make proper application under Section 21(3) of the Act forcondonation of delay and having not done so, he cannotbe permitted to take up such contention at this latestage. In our opinion, the OA filed before the Tribunalafter the expiry of three years could not have beenadmitted and disposed of on merits in view of thestatutory provision contained in Section 21(1) of theAdministrative Tribunals Act, 1985. ..”

25. The applicants have not approached the Tribunalwithin one year from the date of last appointments made inpursuance of the selection process i.e. 05.12.2001. A vagueaverment is made by the applicants in second batch ofapplications that they made representations to theGovernment and their representations have not beenconsidered by the Government. There is no factualfoundation as to on what date they made the representationsand on what dates their representations were rejected. It isnot their case that they were not aware of the appointmentsthat were made in pursuance of the 1999 selectionprocess. On the other hand, they have specifically statedto the effect that as per the Government Memo dated13.3.2000, 20 persons were appointed. Therefore, theapplicants in the second batch of applications were fullyaware of the appointments that were made in pursuance ofthe selection process. Further more, in some of the O.As.,the order is to consider the cases of the applicants forappointment as MPHAs in the existing vacancies, which isclearly vitiated by error of law apparent on the face of record. 26. Considering the fact that the Writ Petitions filedchallenging the common order dated 10.03.2005 in the first batch of applications in O.A. Nos. 5653 of 2002 & batch, areallowed setting aside the impugned common order of theTribunal, the orders passed by the Tribunal in the secondbatch of applications basing on the said common order in thefirst batch of applications, would also liable to be set aside. 27. Accordingly, the Writ Petitions are allowed settingaside the impugned orders therein passed by the Tribunal, inthe circumstances, no costs.

______________________

JUSTICE D.S.R.VARMA

_____________________

JUSTICE K.C.BHANU

.12.2007DRK

[1](2007) 8 Supreme Court Cases 785[2](2002) 10 Supreme Court Cases 549[3](2006) 3 Supreme Court Cases 330[4](1999) 8 Supreme Court Cases 304