G KRISHNAM RAJU Vs. K A PARVATHI

JUDGEMENT

(1.) The is an application by the sole petitioner in the writ petition for taking action under the Contempt of Courts Act, for deliberately violating the order of this court dated 29-11-1989 in W.P. No. 18475/1988. The sole respondent in the writ petition is Sri Padmavathi Mahila Viswavidyalayam, Tirupati, represented by its Registrar. It is useful to extract the entire judgment and also to notice that it has become final as no appeal or review petition has been filed : "The sole petitioner seeks a direction in the nature of mandamus against the 1st respondent-University to appoint him as a Superintendent in its service from the date he was selected. The 2nd respondent who is a lady working in some other Institution, has been appointed on deputation as Superintendent. The petitioner holds a M.Com. Decree from S.V. University and a Post-graduation Diploma in Public Administration. He has passed both Typewriting and Shorthand (Higher Grade-English) and has been working in Sri Venkateswara University as an U.D. Steno since 1977. The 1st respondent-University published an advertisement dated 12-12-1986 in the newspapers inviting applications from suitable candidates for various posts. Item No. 4 of the advertisement is regarding item the Superintendent in the pay scale Rs. 700-1200. The number of vacancies indicated in the advertisement are four. As the petitioner fulfilled the criteria mentioned in the advertisement, he applied through proper channel. The petitioner and another candidate were called for Interview which was held on 28-3-1987 by the Selection Committee consisting of the Registrar, Vice Chancellor's nominee and the Principal of the S.P. Mahila University College constituted by the Vice Chancellor in accordance with the statutory provisions. As the petitioner did not hear anything thereafter, he made representations which are of no avail. Thereafter, he has filed this writ petition. A reference is made to the Ministerial Service Rules of the University which are effective from 18-3-1986 and are framed under its statutory powers i.e. prior to the notification. According to the said Rules, the post of a Superintendent is classified under category-I and the method of recruitment includes by transfer from category of Stenographer or by direct recruitment. It also contemplates preparation of a list of approved candidates. There is no statutory provision disqualifying a male from being appointed to the said post. According to the petitioner he has not been appointed merely on the ground of being a male candidate relying upon some instructions of the Government which cannot be treated as valid. He has further pointed out that several men working in the respondent-University and, in fact, twenty men have been appointed after the interview of the petitioner. In the counter-affidavit filed by the person who was then holding the post of Registrar it is stated that a policy decision was taken that as far as possible only eligible women should be appointed. It is also pointed out that the advertisement contains a clause that women will be preferred. Reference is made to some Government instructions which cannot be given a go-by. It is not disputed that the Selection Committee had selected the petitioner but it is contended that mere selection cannot confer a right on the petitioner. The fact of representation made by the petitioner within six months after the interview and that no reply was given to the petitioner is not disputed. The petitioner has filed a reply. According to him, the counter-affidavit contains inaccuracies. According to him, in response to the advertisement 81 persons had applied for the post of Superintendent and after screening, the University had called for interview only three persons but only two including the petitioner had appeared for the interview and the petitioner was selected. It is also pointed out that the reference to the meeting of the Executive Council dated 8-12-1988 is only to distort the facts as the question of appointing the petitioner was neither on the Agenda nor considered. He has also pointed out that one K. Ramadas, who was working as L.D. Steno in the Osmania University with only B.Com, and Lower Grade Stenography qualification was appointed in May, 1983 on deputation in the 1st respondent-University, and subsequently permanently absorbed and still working. The records produced by the standing counsel for the University were looked into on 10-11-1989. As the records did not show any decision of the Vice-Chancel regarding the appointment of the petitioner as Superintendent and the reliance on some notes which were referred to in the counter-affidavit was prima facie irrelevant, the University counsel was asked to produce the records relating to the material and any resolution or order where decision was taken about the appointment of the petitioner or anything concerned with it. On 21-11-1989 it was stated by the Standing Counsel for University that in the records of the University there is no material to show that a decision was recorded by the Vice Chancellor regarding appointment or non-appointment of the persons selected for appointment by direct recruitment to the post of Superintendent including the petitioner. But it was urged that the petitioner being a male cannot claim a right to any appointment in the respondent-University. The University is a statutory authority and also a State within the meaning of Art. 12 of the Constitution. It has, therefore, not only bound by the Constitutional mandate contained in Arts. 14 and 16 but the statutory provisions like the Ministerial Service Rules as well as the need to take a decision pursuant to a selection made by the Selection Committee in response to an advertisement. Neither the Rules nor the advertisement contain any clause disqualifying men from applying. The advertisement only indicates preference in favour of women. That does not amount to a disqualification and it is not the case of the respondents that any other woman candidate has applied. The need to consider the validity of any such policy decision does not arise as there is no material to show that such a decision was taken by any authority exists. Any letter written by an officer of the Government cannot be a valid direction of the Government or a policy decision in the face of statutory Rules. The vacancy existed on the date of advertisement, on the date of interview and is existing even now. The denial of appointment to an eligible and selected candidate in accordance with the rules is not only a violation of the obligation cast by the statutory rules but amount to discriminatory treatment of the petitioner in violation of Arts. 14 and 16 and an arbitrary action. In the circumstances, there shall be a direction to the respondent-University to take action regarding the filling up the vacancy of the post of Superintendent by considering the petitioner and ignoring the circumstance that he is a male candidate. This shall be done within two weeks of the receipt of this order. The writ petition is allowed with costs assessed at Rs. 500.00." As no action was taken after the judgment and even after issue of a legal notice the petitioner has filed this Contempt Case on 2-3-1990 impleading the person who was then occupying the post of Registrar by name as the sole respondent and notice before admission was directed on 4-6-1990. On 18-6-1990, respondent appeared and time was granted for counter and personal attendance was dispensed with until further orders. The Contempt Case was admitted on that day. A counter-affidavit sworn to by respondent No. 1 on 18-6-1990 was filed on 6-7-1990. On 9-7-90 the respondent was directed to produce the records in respect of the action taken consequent upon the judgment in the writ petition and time was given to the petitioner to file any reply. A reply affidavit sworn to on 27-7-1990 was filed on the same day. On 10-8-1990 it was stated by the counsel for the respondent that the orders of the court have been complied with and order of appointment issued and the petitioner's counsel wanted to verify the same and the matter was adjourned. When the matter came up on 27-8-1990 the counsel for the respondent placed before the court a proceedings dated 10-8-1990 by which the petitioner was temporarily appointed as Superintendent and he was asked to report for duty on or before 23-8-1990; otherwise the order was to be cancelled. It was also stated by the counsel for the respondent that on 18-8-90 the petitioner had filed an application seeking extension of time for certain clarifications regarding the terms of appointment etc. The petitioner's counsel took time to verify. On 30-8-90 the counsel for the petitioner has brought to the notice of the court that the order of appointment dated 10-8-90 was in violation of the direction in the writ petition and statutory provisions. The respondent was directed to file a further counter-affidavit indicating the number of persons appointed by direct recruitment pursuant to the advertisement to which the petitioner applied and also placing the appointment orders issued to them. The respondent filed a rejoinder affidavit sworn to on 8-9-90 and an affidavit sworn to on the same day giving the particulars directed by the court. At that stage, the petitioner filed Contempt Application No. 124/1991 on 27-2-1991 for impleading the 2nd respondent, who has been working as in charge Vice Chancellor from 16-7-90 and had made the appointment. Notice to the proposed party was ordered on that application on 28-2-1991 and the Contempt Case was adjourned along with the said application counter-affidavits to the application were filed by the proposed party and also by the respondent in the Contempt Case raising various objections. By an order dated 29-3-91 2nd respondent was impleaded as a party in the Contempt Case observing that the objections raised would be decided in the Contempt Case. Documents produced by respondent No. 2 were marked by consent as Exs. C-1 to C-5 and arguments were also heard in the Contempt Case on that day. The petitioner has filed a reply-affidavit in this application. The counsel for 1st respondent also addressed arguments and at his request it was adjourned to 1-4-1991 for further arguments. The 1st respondent has filed a further affidavit sworn to on 1-4-1991 enclosing a copy of G.O.Ms. No. 117 Education (UE) Department dated 7-5-1990. On 1-4-1991 arguments were concluded and orders reserved. On 1-4-1991 the file containing reserved. On 1-4-1991 the file containing some relevant papers was produced by the respondents.

(2.) Sri Padmavathi Mahila Viswavidyalayam, Tirupati, is established under Sri Padmavathi Mahila Viswavidyalayam Act, 1983 (Andhra Pradesh Act No. 16 of 1983). In exercise of the powers conferred by the said Act the General and Subordinate Service Rules as well as Ministerial Service Rules have been framed which are in force from March, 1986. The appointing authority under R. 13 of the Ministerial Service Rules is the Vice Chancellor. The Ministerial Service consists of ten categories. Category I is the Superintendent/Secretary to VC. Rule 2 prescribes the method of recruitment and for Category-I there are four sources viz., promotion, transfer, deputation from other University direct recruitment. R. 2 of the General and Subordinate Service Rules provide for first appointment to the service by the appointing authority from list of approved candidates prepared by the Selection Committee. Some time in 1987 the University had advertised for recruitment of 14 teaching staff members and 13 non-teaching staff members to the existing vacancies. The selection for these was held by the Selection Committee as contemplated by the statutory provisions. The Committee had prepared a list of approved candidates for the post of Superintendent and the petitioner was placed at number 1. The petitioner has been working since 1977 in S.V. University and had applied through the employer.

(3.) The term of the previous Vice Chancellor viz., Smt. Rajyalakshmi expired on 2-5-1990. Since then, a Vice Chancellor has not been appointed for this University. It is stated across the Bar that there is no Vice Chancellor for several other Universities in the State like Sri Venkateswara University, Andhra University, Jawaharlal Nehru Technological University and Health University and only in charge arrangements are continuing. After the expiry of the term of the last Vice Chancellor by G.O.Ms. No. 117 Education dated 7-5-1990 the respondent No. 1, who is the Registrar, was appointed to exercise the powers and perform the functions and discharge the duties of the Vice Chancellor until a new Vice Chancellor assumes office. A copy of this G.O. is filed by respondent No. 1. No Vice Chancellor has been appointed but by another order the 2nd respondent, who is an IAS Officer holding the post of Managing Director of Andhra Pradesh Urban Development and Housing Corporation, has been made the in charge Vice Chancellor since 17-7-1990. Respondent No. 1 was the Registrar during the pendency of the writ petition and continues till today. She was in charge Vice Chancellor since 7-5-90 to 16-7-90. Since 17-7-90 2nd respondent is in charge Vice Chancellor. The G.O.Ms. No. 117 Education dated 7-5-1990 appointing the last respondent as the in charge Vice Chancellor referred to sub-cl. (2) of statute I of the Statutes, which reads as follows : "XXXXXXX Notification In exercise of the powers conferred under the proviso to Clause (2) of Statute 1 of the Statutes set out in the Schedule to Sri Padmavathi Mahila Viswavidyalayam Act, 1983 (Act No. 16 of 1983), I, Krishan Kant, Chancellor of Sri Padmavathi Mahila Viswavidyalayam, hereby appoint Dr. K. A. Parvati, Registrar, to exercise the powers, perform the functions and discharge the duties of the Vice Chancellor of the said Mahila Viswa Vidyalayam until a new Vice Chancellor assumes office. Sd/- Krishan Kant Chancellor." According to Clause 15 of the Ministerial Service Rules women should be appointed to the post in the service as far as possible. This is also reflected in the advertisement in response to which the petitioner had applied which indicated that preference will be given to female candidates. Admittedly, no female candidate had applied for this post. As was noticed in the judgment, not only several males were already working in the University but a person with qualifications inferior to that of the petitioner was appointed by deputation and confirmed in the Ministerial service after the advertisement and probably without undergoing any process of selection. The only ground on which the writ petition was resisted was a D.O. letter from an officer of the Government to the effect that males shall not be appointed. The said D.O. letter cannot override the statutory provisions or the terms of the advertisement particularly when no female candidate had applied for this post. In these circumstances a direction was given in the writ petition that the petitioner's case should be considered for appointment ignoring the circumstance that he was a male, and a time limit was specified within which such consideration was to be made. As this direction was violated this Contempt Case was filed and the person holding the office of the Registrar at that time was made the sole respondent making certain allegations against her. From the Note-file, which is marked by consent as Ex. C-5, it is seen that the judgment of the court was received by the University on 6-12-1989 and the matter was also placed before the 35th Executive Council on 23-12-1989 when it was resolved to take legal opinion. Thereafter, steps were initiated to get the service record of the petitioner from the S. V. University where the petitioner has been working. The previous Vice Chancellor, however, made an endorsement on 15-2-1990 that the particulars of the petitioner may be sent to the Counsel. The Note-File as produced, does not show any progress till after the 2nd respondent has taken over as Vice Chancellor. A lengthy Note was circulated giving the particulars of his service in the S.V. University etc. On this, the 2nd respondent has passed an order on 9-8-90 appointing the petitioner temporarily as Superintendent in the pre-revised scale of Rs. 700-1200.00. The order of appointment was communicated by the 1st respondent in the proceedings dated 10-8-1990 which, however, contains the following addition viz., "he should report to duty on or before 23-8-1990 failing which his appointment will be cancelled". The petitioner wrote a letter dated 18-8-90 requesting for extension of time to join till 30-9-90 and also stating that the Contempt Case is also pending. The record produced by the University does not disclose that the 1st respondent has placed this letter before the 2nd respondent but has herself by a letter dated 22-8-1990 refused the request for extension of time. Thereafter, the petitioner has written another letter dated 23-8-90 again requesting for extension of time. After the receipt of this letter, on the direction of the 1st respondents a letter was addressed to the Registrar of S.V. University to ascertain whether the petitioner had got relieved or not from them and the Registrar of S.V. University has replied on the same day that he was not yet relieved. Nothing further has been done thereafter.