N V NARAYANA Vs. A P NUTRITION COUNCIL

JUDGEMENT

(1.) The appointment of the third respondent as Works Manager is assailed in this writ petition. The petitioner was appointed as Supervisor in April, 1976. Subsequently he was promoted as Assistant Engineer on 1-7-1981. The post of Assistant Engineer is equivalent to Deputy Manager cadre. According to the petitioner he worked as incharge Works Manager from May, 1987 to April, 1991. He also worked as officiating M.D., for few spells in 1988 and 1989. The qualification of the petitioner is A.M.I.E., and post-graduate diploma. The third respondent was appointed as Supervisor on 1-4-1976. He is a diploma holder in Mechanical Engineering. He was promoted as Assistant Engineer on 1-10-1982. He also appears to have worked as incharge Manager (Mechanical) from May, 1987 to April, 1991.

(2.) The post of Works Manager was advertised to be filled by direct recruitment. A notification was issued calling for the applications from the eligible candidates working in the A.P. Foods, the second respondent organisation. A notification was issued on 12-3-1990. The petitioner and third respondent applied for the said post. Interviews were conducted on 11-11-1991 and a Selection Committee constituted by the chairman of Nutrition Council, interviewed the candidates. Seven candidates appeared for the interview, out of them R.3 was selected. The appointment order was also issued on 11-11-1991 The principal grievance of the petitioner is that the appointment of the third respondent is illegal as he did not possess basic qualifications for the post of Works Manager. As per the service rules framed by the A.P. Nutrition Council, for 2nd respondent, the post of Managers are filled up by two modes, one by direct recruitment through advertisement and another by promotion. In respect of direct recruitment, the requirement is that the candidate should possess first class degree in Engineering/Technology with M.B.A., and ten years minimum experience in a reputed industry. In respect of promotion from the Deputy Manager cadre, five years service as Deputy Manager is eligible to be considered. As per the selection proceedings filed by the respondents, the third respondent is only a diploma holder in Mechanical Engineering and he was studying at the relevant time computer science. Therefore, basing on this material it has to be seen whether the petitioner fulfills the qualification required for the post of Manager. Even in the counter, the respondents have not come up with any definite averments as to under what circumstances the third respondent was called for interview and he was selected when the requirement is first class degree in Engineering with M.B.A. Even in the counter it was stated that no relaxation was given to any candidate. In such circumstances, it has to be held that the third respondent is not eligible to apply for the post of Works Manager and therefore his appointment is wholly illegal and contrary to the rules framed by the first respondent in respect of the service conditions of the employees in the second respondent-A.P. Foods. Under these circumstances, I have no option except to set aside the appointment of the third respondent on the ground of not possessing required qualification under the bye-laws. The writ petition is accordingly allowed. No costs. However this order does not preclude the authorities from making fresh selection to the post of Works Manager keeping in view the service rules framed by the first respondent. In view of this, I need not consider the other contentions raised by the petitioner in the writ petition. This writ petition having been set down for being mentioned on 18-12-1995 and up on perusing the order of the High Court dated 24-11-1995 and made herein and material papers in the petition and upon hearing the arguments of Mr. Y. Suryanarayana, advocate for the petitioner and of Mr. K. Ramanujachary, advocate for the respondents, the Court made the following order:- 1. The Writ Petition is reopened in view of the circumstances pleaded by the learned counsel for Respondents in his personal affidavit. 2. Heard the arguments of the learned counsel for Respondents. He submits that the 3rd respondent is fully eligible for appointment to the post and having been selected by a competent selection board, the same cannot be set aside. He submits under identical circumstances, the Division Bench of this court in M/s Andhra Pradesh Foods & another vs. Abdul Gaffar Khan & another upheld the appointment of Sri V. Ram Reddy. The learned single Judge allowed the Writ Petition and quashed the appointment of the unofficial respondent. Against the said orders appeal was filed by the corporation. In the said case the Division Bench did not consider the requirement of educational qualifications for the post for direct recruitment and for promotion. Admittedly the post was sought to be filled up by direct recruitment as the same was advertised and the applications were called from the outsiders. In such circumstanceseven if the in service candidates apply for direct recruitment post, they should possess the qualifications unless any relaxation's granted. It is only in case of promotion the inservice candidates without reference to the educational qualifications are considered for promotion basing on the experience. There is no discussion about these aspects. Therefore the Judgment (1st cited supra) is per incuriam.

(3.) It is also urged by the learned counsel for the respondents that the Writ Petition has to be dismissed inas much as the cancellation of the appointment of R-3 would not ensure to the benefit of the petitioner and to the same effect the Division Bench rendered the decision. I cannot accept the contention. The Division Bench did not lay down any principle on the aspect. It only observed, thus. "Even assuming that the mode of selection of appellant No.2 may not be strictly in accordance with the rules or the requisites for the post, the quashing of the impugned order by the learned single Judge did not ensure to the benefit of respondent No. 1. Because a direction was issued to call for the fresh application and to appoint one of the applicants for the post of Manager afresh" The learned counsel further submits that there was no pleading in the Writ Petition that the 3rd respondent was not qualified and hence the petitioner estopped from raising this point at the time of arguments. He also relies on the judgment of the Supplement Court in Arunkumar Roy vs. State of West Bengal. This submissions is equally not tenable. The petitioner had clearly stated in his affidavit stating that "the action of the authorities in ignoring the case of the petitioner and in appointing the third respondent who is not possessing necessary qualifications of degree is arbitrary and illegal". It is lastly contended that neither the petitioner nor the R-3 possess the qualifications and hence none of them get the benefit when the Writ Petition is allowed. Though the contention appears to be appealing in the first blush, but when deeper probe is made it carries no hold. There are millions of highly educated youth in the country languishing for employment. The very advertisement is for direct recruitment to attract the unemployed educated youth. Therefore it is a step towards elimination of unemployment and not to prosper the career of inservice . candidate. State cannot afford to violate Article 16 to its citizens.