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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 10583-10585 OF 2017 [@ SPECIAL LEAVE PETITION (C) NO(S). 36057-36059 OF 2016]

MUNJA PRAVEEN & ORS. ETC. ETC.  ... Appellant(s)

Versus

STATE OF TELANGANA AND ORS.ETC. ETC. ... Respondent(s)

WITH

CIVIL APPEAL NO(S). 10586 OF 2017 [@ SPECIAL LEAVE PETITION (C) NO(S). 36194 OF 2016]

M. SREEDHAR & ORS.  ... Appellant(s)

Versus

STATE OF TELANGANA REP. THR. PRL. SECRETARY AND ORS. ... Respondent(s)

J U D G M E N T

Deepak Gupta, J.

Applications for impleadment are allowed.

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2. Leave granted.

3. These  appeals  are  directed  against  the  judgment  dated

29.08.2016  whereby  the  Division  Bench  of  the  High  Court

dismissed the writ  appeals filed by the present appellants and

upheld the judgment of the learned Single Judge allowing the writ

petitions.   

4. Briefly stated, the facts of the case are that various electric

supply and generation companies in the State of Telangana viz.,

Telangana  State  Transmission  Company  Limited,  TSTRANSCO,

Telangana State  Northern Power Distribution Company Limited

(TSNPDCL),  Telangana  State  Southern  Power  Distribution

Company  Limited  (TSSPDCL)  and  Telangana  State  Generation

Company  (TSGENCO),  hereinafter  referred  to  as  the

‘Corporation(s)’,  issued  separate  advertisements  inviting

applications for the posts of  Assistant Engineer (Electrical) and

Assistant Engineer (Civil).  The applications were invited online.

All but one of the advertisements provided that there will be no

waiting list as per G.O.Ms. No. 81, General Administration (Ser.

A) Department, dated 22.02.1997.  Selection was to be based only

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on the basis of written examination.  Thereafter, on the basis of

merit drawn, community wise, the candidates were to be offered

selection.   

5. All the tests were conducted at about the same time and the

result was that the more brilliant candidates found their names

in the select list of more than one Corporation.  Many candidates

were selected in more than one Corporation being high up in the

merit  list.   On  01.06.2016,  clarification  was  issued  by  the

Government of Telangana that the Corporations were free to fill

up the left over notified (advertised) vacancies by operating the

merit list downwards for each category.   

6. After this clarification was issued, the private respondents

(original  writ  petitioners)  filed  two  writ  petitions.   Their  main

challenge was that in terms of G.O.Ms. dated 22.02.1997, which

was incorporated in the advertisement, there was to be no waiting

list and, hence, there was no question of operating the merit list

downwards.   According  to  the  original  writ  petitioners,  all  the

posts lying vacant would have to be filled up in the subsequent

selection  process.   The  High  Court  held  that  since  in  the

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advertisement the G.O.Ms. No. 81 was specifically referred to and

it  was  mentioned  that  there  would  be  no  waiting  list,  the

Corporations  could  not  be  permitted  to  operate  the  merit  list

downwards and the vacancies, if any left, would have to be filled

in the subsequent selection process.  The Court also held that the

letter dated 01.06.2016 relaxing the provision, is contrary to the

earlier  notification  and,  therefore,  quashed  the  same.

Consequently, the writ court allowed the writ petitions.   

7. Aggrieved by the said judgment, writ appeals were filed by

the candidates, who would have been selected if the merit list was

permitted  to  be  applied  downwards.   These  writ  appeals  were

dismissed and, hence, the present appeals.

8. We have heard learned senior counsel/learned counsel for

the parties.  At the outset, it may be noted that TSNPDCL had

issued advertisement for filling up 164 vacancies, TSGENCO had

issued advertisement for filling up 856 vacancies, TSSPDCL had

issued advertisement for 201 vacancies and TSTRANSCO issued

an advertisement to fill  up 206 posts.   The examinations were

conducted  by  these  Corporations  on  08.11.2015,  14.11.2015,

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22.11.2015  and  29.11.2015  respectively.   The  results  were

declared almost simultaneously in which many of the candidates

got selected in more than one Corporation.  This led to a situation

where  the  candidate  selected  in  more  than  one  Corporation

exercised  his  or  her  prerogative  to  produce  certificates  for

verification  of  qualification,  caste  etc.  before  one  Corporation.

Since  the  applications had been invited  online,  the  certificates

had to be produced after the written test was conducted.   

9. It  appears  that  faced  with  a  situation  where  many  posts

would  have  remained  vacant,  the  Corporations  asked  for  a

clarification from the  State  Government,  which resulted in the

letter dated 01.06.2016.  

10. Since the judgment of the High Court is based on G.O.Ms.

No. 81 dated 22.02.1997, we may deal with the said G.O.Ms. in

detail.  In the said G.O.Ms., the practice of having a long waiting

list  has been deprecated.  We have carefully  gone through the

G.O.Ms.  concerned.   This  G.O.Ms.  has  been issued  in  certain

peculiar circumstances.  It appears that  a common test was held

for a number of services comprised in Group-I, which includes

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Deputy Collector, Deputy Superintendent of  Police, Commercial

Tax  Officer,  Regional  Transport  Officers,  District  Panchayat

Officers,  District Registrar etc.   Obviously,  people higher up in

merit chose to occupy the more coveted posts of Deputy Collector,

Deputy  Superintendent  of  Police  etc.   A  waiting  list  was  also

prepared.   The  waiting  list  started  after  the  last  selected

candidate i.e. if the post of District Registrar was the least coveted

post,  the  waiting  list  would  start  after  this  post.   If  some

candidates  higher  up in the  merit  list  did  not  join  one  of  the

higher posts then the person next in the waiting list would be

offered appointment.  This led to an anomalous situation where a

person  having  very  high  marks  would  get  the  post  of  Deputy

Superintendent of  Police  but a person much below him in the

merit list but at Serial  No. 1 or 2 of  the waiting list would be

appointed to the post of Deputy Collector because some person

had  not  joined  the  post  of  Deputy  Collector  and  there  was  a

vacancy in the said service.  Those selected candidates who had

joined on the less coveted services, say Assistant Account Officer,

District  Registrar  etc.  claimed that  before  offering the  posts  to

those on the waiting list, they should be permitted to change their

service.  This led to a large number of cases being filed and it is in

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this  context  that  the  G.O.Ms.  was  issued.   Reliance  has  been

placed  by  the  appellants  on  Paras  8  and  9  of  the  G.O.Ms.,

relevant portion of which reads as follows:

“8............According  to  these  rules,  in  a  recruitment year,  against  number of  notified vacancies,  selection shall  be  made  only  to  the  equal  number  of   posts notified  and there shall be no waiting list.  In other words,  in  a  recruitment  year,  after  selection  of  the candidates  and after issue of appointment orders, if the candidate fails to join duty within the stipulated period  that vacancy shall be notified again in the next recruitment  year,  this  alienates  the  system  of preparing waiting list for  fall out the vacancies..........

9.  Therefore,  the  Government,  after  careful examination  has  agreed  with  the  proposal  of  the Andhra  Pradesh  Public  Service  Commission  and accordingly  direct  that  hence  forth  the  list  of  the candidates approved/selected by the Andhra Pradesh Public  Service  Commission  shall  be  equal  in  the number of vacancies only including those for reserved communities  categories  notified  by  the  unit  officers. The  fall  out  vacancies  if  any  due  to  relinquishment and non joining  etc.  of  selected candidates  shall  be notified the next recruitment.”

11. According to us,  the High Court  has totally  misconstrued

the  above  G.O.Ms.   The  portion  of  the  G.O.Ms.  quoted  above

clearly  lays  down  that  there  shall  be  no  waiting  list  and  the

selection shall  be made equal to the number of  posts notified.

The purpose was that the vacancies arising due to people leaving

the posts must be filled up by subsequent selection and not on

the basis of a waiting list.  It was clarified that after selection of

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the  candidates  and  after  issue  of  appointment  orders,  if  the

candidate fails to join within the stipulated period, that vacancy

should be notified again.  This portion of the G.O.Ms. admits of

only one interpretation that after appointment order is issued and

the person appointed does not join, then the vacancy cannot be

filled up on the basis of the waiting list or by operating the merit

list downwards.  This is also clear from clause 9 of the G.O.Ms.,

which also clarifies that fall out vacancies due to relinquishment

or non-joining of the selected candidates may be notified in the

next recruitment.  This obviously means that the clause will apply

after  issue  of  letter  of  appointment.   There  can  be  no

relinquishment and non-joining unless an appointment letter is

issued.

12. The position before us is totally different.  As pointed out

earlier, some of the candidates, who got selected in more than one

of  the  Corporations,  were  called  for  verification  of  their

certificates.  No appointment order had been issued till this stage.

In the meantime, the State issued a clarification, as set out in the

letter dated 01.06.2016, relevant portion of which reads as under:

“.......I am to invite attention to the above subject and reference  cited  and  inform  the  Government  after

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careful examination of the matter  hereby relaxes the provision, as a special case under the circumstances, of  calling for the candidate on basis for verification of certificates as contained in their notifications as one time  option  and permits  the  TRANSCO,  TS  SPDCL and  TS  NPDCL  to  fill  up  the  left  over  notified (advertised) vacancies of Assistant Engineers of their respective  utility  duty  operation  the  merit  list downwards for each category by following other rules prescribed in their respective notification....”

13. We  see  nothing  wrong  in  this  letter.   In  fact,  this  is  in

consonance with the G.O.Ms. dated 22.02.1997.  The State and

the  Corporations  have  supported  the  case  of  the  appellants.

Their stand is that a large number of posts are lying vacant and if

fresh selection have to be made, the filling up of the posts shall be

delayed.  We may also note that the original writ petitioners are

obviously below the appellants in the merit list.  They cannot be

selected  in  this  selection  even  if  the  merit  list  is  operated

downwards.  They cannot be permitted to urge that persons, who

are more meritorious than them should not be selected and fresh

selection should be made.  When the entire G.O.Ms. of 1997 is

read as a whole, it is amply clear that it will have application only

after appointment orders are issued and the posts not filled up

after  issue of  appointment letters  shall  be  notified in the  next

recruitment.  

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14. Even otherwise also, we are of the view that this is the only

logical way to interpret the G.O.Ms.  The G.O.Ms. obviously has

been issued, keeping in mind a single selection process.  Here, we

are  dealing  with  a  multiple  selection  process  for  different

Corporations.   The  more  brilliant  candidates  were  selected  in

more than one of the Corporations.  They obviously cannot join in

more than one Corporation.  Therefore, if the top four candidates

have been selected in all four Corporations, they could only join

one of the Corporations and twelve posts would remain vacant, if

the  interpretation  given  by  the  High  Court  is  accepted.   This

would lead to a position where large number of vacancies would

not be filled up.    

15. On a conjoint reading of clause 8 and 9 of the G.O.Ms. dated

22.02.1997,  we  are  clearly  of  the  view  that  this  was  not  the

purpose of the G.O.Ms.  According to us, the G.O.Ms. would come

into  operation only  after  appointment  letters  were  issued  and,

therefore, if a person, who is at number one position, goes to one

of the Corporations and is given the appointment letter, he may

not  go  to  other  three  Corporations  for  verification  of  the

certificate.   That  does  not  mean that  the  first  post  in  all  the

Corporations should now lie vacant.  

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16. We may also add that the High Court did not note an earlier

Division Bench judgment of the Andhra Pradesh High Court in

the  case  of  Government  of  A.P.  &  Others  v.  Ms.  Bhagam

Dorasanamma & Another (W.P. No.24944 of 2013), wherein the

High Court had correctly interpreted the G.O.Ms. in the following

manner:

“19. The process of recruitment starts from the date of notifying the vacancies and attains finality with the act of issuing appointment order, offering the post to the selected candidate.  In the absence of reaching the said finality of issuing appointment order in respect of subject vacancy, the question of either relinquishment or  non-filling  of  the  same  does  not  arise.   The interpretation sought to be given by the authorities for denying appointment to the applicant/1st respondent herein  is  contrary  to  the  very  spirit  and  object  of service  jurisprudence   and  we  find  total  lack  of justification on the part  of  the petitioner  authorities and  such  action  undoubtedly  tantamounts  to transgression of Part III of the Constitution of India in the event of  testing the same on the  touchstone of Article 16 of the Constitution of India.”

17. Normally, the aforesaid judgment should have been followed,

but no reference has been made to the same in the impugned

judgments.   

18. We are also of the view that the Government was justified in

issuing the letter dated 01.06.2016 in the larger public interest.

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19. In view of the above discussion, we allow the appeals, set

aside  the  judgments  of  the  Division Bench and learned Single

Judge  of  the  High  Court  and  consequently  dismiss  the  writ

petitions.  The Corporations may fill up the posts as directed in

the letter dated 01.06.2016 and in the light of the interpretation

of clause 8 and 9 of G.O.Ms. given by us.  

Pending application(s), if any, stand(s) disposed of.

....................................J. (MADAN B. LOKUR)

....................................J. (DEEPAK GUPTA)

New Delhi August 17, 2017