K. Ashok vs State Of Telangana

This writ petition is filed aggrieved by the impugned Memorandum Rc.No.217/Rect./Admn.I/2017 dated 27.11.2017 issued by the respondent No.2 wherein the claim of the petitioner for appointment to the post of SCI SI (Civil) in Zone-V under Ex-Servicemen Category pursuant to the Notification Rc.No.1/Rect/Admn.1/2016 dated 06.02.2016 has been rejected though the 1st meritorious candidate submitted unwillingness letter, in spite of the fact that the petitioner is next meritorious candidate, as being illegal, arbitrary and unconstitutional

It is contended that the petitioner rendered 16 years of service in Indian Army and obtained voluntary retirement. Pursuant to notification issued by the respondent No.2 on 06.12.2016 for filling up various posts in Police Department including SCT SI's (Civil/AR/TSSP), the petitioner applied for the post under Ex-Servicemen quota. He participated in the selection process with Registration No.1091826. In his application form, he gave his preference to the post of SI Civil including other options. He secured 288 marks in the written examination and was selected to the post of SCT-RSI (TSSP) as per merit. The respondent authorities issued appointment orders appointing the petitioner as SCT-RSI (TSSP) under Ex-Servicemen category in the year 2018. He had been discharging his duties since then.

It is stated that along with the petitioner, two persons applied under Ex-Servicemen quota i.e. Venkat Krishna, who secured 310 marks and Mahender Mashireddy, who secured 304.50 marks and they were selected for the post of SI Civil. Likewise one Rama Krishna Podili, who secured 284.50 marks, was selected as Station Fire Officer. Though petitioner got 288 marks and entitled to the post of Station Fire Officer, his claim was not considered on the ground that he has not opted for that post. It is further stated that even before selection process commenced, the said Venkat Krishna, who got 310 marks and stood at first place in the merit list, submitted unwillingness letter dated 12.09.2017 to the respondent No.2 for joining to the post of SI (Civil). In his letter he stated that he was already selected and appointed in the banking sector under Ex-Servicemen category. Knowing the fact that the petitioner is the next meritorious candidate, securing 288 marks and entitled for the post of SI (Civil), the petitioner submitted an application dated 18.09.2017 to the respondent No.2 for change of post code preference from RSI (TSSP) to SI (CIVIL) under Ex-Serviceman quota, as Venkat Krishna gave his unwillingness letter. The petitioner submitted representation dated 05.11.2017 but the authorities erroneously and arbitrarily rejected the same vide impugned memorandum dated 27.11.2017 stating that "...the vacancy of another selection candidate who is not willing to join as SCT SI (Civil). You are informed that as per Government G.O.Ms.No.544, GA (Ser.A) Department dated 04.12.1998, the fallout vacancies, if any, due to relinquishment and non joining etc., of selected candidates shall be notified in the next recruitment".

Mr. K.G. Krishna Murthy, learned senior counsel for the petitioner, submitted that rejection of the claim of the petitioner was on the basis of G.O.Ms.No.544 dated 04.12.1998. The G.O. is applicable in cases where selected candidate was issued appointment order and the said candidate relinquished the same. But in the present case, immediately after putting the merit list, the person, whose name was found at first place in the merit list, submitted his unwillingness letter stating that he is working in banking sector and not interested to join the post of SCT SI (Civil). He submitted that the Central Government issued instructions from time to time for the benefit of Ex-Servicemen. He relied on a memo dated 14.08.2014 issued by the Central Government wherein it was decided that once an ex-servicemen has joined the Government job on Civil Side after availing the benefits given to him as an ex-servicemen for his re-employment, his ex-serviceman status for the purpose of re-employment in Government would cease and he is deemed to be a civil employee.

Mr. M.V. Rama Rao, learned Special Government Pleader, while referring to the averments of the counter affidavit, submitted that the petitioner was provisionally selected to the post of SCT RSI (TSSP) under ex-servicemen category as per the merit secured by him. The contention that the candidate, whose name was found at first place in the merit list, submitted unwillingness letter dated 12.09.2017 prior to selection is not correct. The provisional selection list was issued on 02.09.2017 and not after 12.09.2017. As per G.O.Ms.No.544 dated 04.12.1998 the fallout vacancies, if any due to relinquishment and non-joining of selected candidates, shall be listed in the next recruitment. Thus, vide memo dated 27.11.2017, the petitioner's request was examined and it was found not feasible and hence, rejected. The decision in WP.No.2656 of 2013 is not applicable to the fact of this case. The Government of India memo dated 14.08.2014 is communicated to the officers of Central Government and not marked to the State Government. The fallout vacancies of previous recruitment are already included in the posts notified vide recruitment notification dated 31.05.2018 for which the process has already been completed and the writ petition is filed with much delay.

Heard Mr. K.G. Krishna Murthy, learned senior counsel for the petitioner and Mr. M.V. Rama Rao, learned Special Government Pleader.

The first point to be considered is whether the vacancy arisen out of unwillingness letter dated 12.09.2017, issued by Venkat Krishna, is a fallout vacancy or not?

This Court in M. RAJ SEKHAR v. THE STATE OF TELANGANA 2020 SCC OnLine TS 1057 made the following observations:

The precedential law makes it clear that in all the three contingencies mentioned above, recruitment process has not attained finality and therefore the next meritorious candidate belonging to that social group/open competition, as the case may be, can stake claim for appointment. Such vacancy is not treated as a fall out vacancy. It does not amount to maintaining wait list and operating it. It is rectifying an illegal selection/deleting the name of a person who was not issued appointment order, including when he did not show up for certificate verification. G.O.Ms.No.81, ad hoc rule and amended Rule 6 of PSC Rules of procedure, as interpreted by the Constitutional Courts also make this aspect clear.

In spite of clear declaration of law by the Constitutional Courts, the skewed up understanding on what is meant by 'fallout vacancy' is resulting in depriving employment to successful candidates.

In the case on hand, admittedly, the person at Sl.No.19 S. Arvind Kumar did not report before the appointing authority for certificate verification and therefore no appointment order was issued to him. Thus, this vacancy cannot be treated as fallout vacancy and the policy decision in G.O.Ms.No.81, dated 22.02.1997, consequential ad-hoc rule notified in G.O.Ms.No.544, dated 04.12.1998 and amended Rule 6 of PSC Rules of procedure are not attracted. Therefore, it was available to include next meritorious candidate belonging to Scheduled Caste category in the merit list and to appoint him."

Now coming to the facts of the present case, Venkat Krishna, who was selected to the post of SCT SI (Civil), submitted unwillingness letter on 12.09.2017.

Learned Special Government Pleader contended that the vacancy arising on account of relinquishment of the post of Venkat Krishna, who was selected, has to be treated as a fallout vacancy and the petitioner does not have any right to claim such post. It is noticed herein that the selection process was completed in the year 2018. In the letter dated 12.09.2017, it was specifically stated by Venkat Krishna that he is working in banking sector and he is not willing for the post of SCT SI (Civil). In fact, the petitioner was selected in the year 2018. There is no material before this Court to show that the selection process was completed and Venkat Krishna relinquished or did not join in the post, after selection process was completed. As held in M. RAJ SEKHAR's case (1 supra) the selection of a candidate would mean that the verification of the certificates of the selected candidates is completed and he is given posting orders and the candidate actually reports to the duty.

It is no where stated by the respondents that verification of the certificates of Venkat Krishna was completed and he joined and took charge as SI (Civil). Thus, the contention of the learned Special Government Pleader that the said vacancy is a fallout vacancy and as per G.O.Ms.No.544 dated 04.12.1998, the vacancy will be filled up in the next recruitment is without any merit. In view of the above, this Court holds that the vacancy, which has arisen on account of unwillingness letter dated 12.09.2017, is not a fallout vacancy.

The second point to be considered is whether there was a delay or lapse on the part of the petitioner.

Learned senior counsel for the petitioner submitted that there was no delay on the part of the petitioner and he approached the Court within a reasonable time and the delay, if any, caused is liable to be condoned, as the petitioner suffered due to improper and arbitrary rejection of the respondent No.2.

The representation of the petitioner was rejected vide impugned memo dated 27.11.2017. The petitioner was issued appointment order as SCT-RSI (TSSP) in the year 2018. In the reply affidavit, the petitioner stated that the recruits were given appointment and sent for training in December 2018. The petitioner was undergoing training since October 2017. Even if there is a delay, it is not fatal to his case.

Learned senior counsel for the petitioner relied upon the following decisions of the Supreme Court: COLLECTOR, LAND ACQUISITION v. KATIJI (1987) 2 SCC 107; N. BALAKRISHNAN v. M. KRISHNAMURTHY (1998) 7 SCC 123 and STATE OF BIHAR v. KAMESHWAR PRASAD SINGH (2000) 9 SCC 94.

The aforesaid first two decisions relate to condonation of delay under Section 5 of the Limitation Act and may not be of much relevance for this case. In KAMESHWAR PRASAD SINGH's case (4 supra), the Supreme Court made the following observations:

"11. Power to condone the delay in approaching the court has been conferred upon the courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107 : 1989 SCC (Tax) 172 : (1987) 2 SCR 387] held that the expression "sufficient cause" employed by the legislature in the Limitation Act is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life-purpose for the existence of the institution of courts. It was further observed that a liberal approach is adopted on principle as it is realised that: (SCC p. 108, para 3)

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

Having considered the above decision of the Supreme Court and applying the same to the facts of this case, this Court is of the opinion that the respondents passed the impugned rejection memo contrary to G.O.Ms.No.544 dated 04.12.1998 and they cannot be permitted to take advantage of their own wrong. The petitioner, being an ex-serviceman and next meritorious candidate was entitled to be considered for the post of SCT SI (Civil) and for the lapses of the respondents, the petitioner cannot be penalized. In order to ensure substantial justice to the petitioner, the delay, if any, is condonable and more so, not fatal to the case of the petitioner.

In the light of the above observations, the writ petition deserves to be allowed and is accordingly allowed setting aside the Memorandum Rc.No.217/Rect./Admn.I/2017 dated 27.11.2017 issued by the respondent No.2. Consequently, the respondents are directed to appoint the petitioner to the post of SCT SI (Civil) within a period of one month from the date of receipt of a copy of this order. Pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.