Erpula Sudhakar v. The Additional District Medical And Health Officer (T)

Date :27.7.2017 Between :

Erpula Sudhakar S/o Devaiah 32 years Pharmacist Grade II on contract GH Venkatapuram, Khammam district Petitioner And The Additional District Medical and Health Officer (T) Bhadrachalam Khammam district and others Respondents The Court made the following:

ORAL ORDER:

Advertisement No.1 of 2007 was issued by Project Director ITDA calling for applications to fill up 23 Pharmacist Grade II and 6 Lab Assistant posts in agency areas on regular/contract basis. In Clause 9 of the notification it was indicated that if local ST candidates are not available, the candidature of others can be considered for appointment on contract basis with the condition that as and when the local ST candidates are available, they would be provided employment and the person selected on contract basis would be replaced. Petitioners responded to the notification and they were appointed on contract basis in January, 2009. While so, show cause notice was issued on 28.2.2013 calling upon the petitioners to submit explanation as to why they should not be removed from contract service. Petitioners stated to have submitted their explanation but challenging the show cause notice, they invoked the jurisdiction of A.P. Administrative Tribunal by filing O A No. 2536 of 2017 which is since transferred to this Court and numbered as WP (TR) No. 429 of 2017. 2.

Heard learned counsel for petitioner and learned Government Pleader. 3.

Learned counsel for petitioners submits that in terms of recruitment notification, petitioners participated in the selections and since no eligible local ST candidate was available, petitioners were appointed in terms of Class 9 of the notification. Since no further recruitment is made and petitioners have been working, they are entitled to continue as long as qualified ST candidates are available to man the posts of Pharmacist Grade II/ Lab Technician. He therefore submits that show cause notice impugned in the writ petition is exfacie illegal. According to learned counsel, there is no justification to cancel the contract appointment made when there is no eligible local Schedule Tribe candidate available.

4.

The posts in agency areas are reserved for local Schedule Tribe persons only and no other person who is not a Schedule Tribe local candidate can be appointed. The recruitment notification No.1 of 2007 was also issued to fill up the vacancies in Pharmacist Grade II and Lab Technicians to fill up the said vacancies by qualified local ST candidates.

5.

The reservation in public employment is governed by Rule 22 of A.P. State and Subordinate Service Rules. Rule 22 mandates that vacancies reserved for ST candidates have to be filled up by ST candidates and for any reason in the regular recruitment ST candidates are not available limited recruitment should be conducted to fill up those vacancies. Even in the limited recruitment if ST local candidates are not available as per the procedure envisaged from Sub Rule (g) to (i), the vacancies have to be carried forward on three occasions and only there after Government can take a decision to denotify the vacancies. Reading of Advertisement No. 1 of 2007 would show that it was for the first time recruitment notification was issued and there was no de-reservation of the vacancies.

At any rate, it was a recruitment notification to fill up the vacancies by local ST candidates belonging to Agency Area. This recruitment notification cannot contain the clause to fill up vacancies by any other category/community person, if no candidate belonging to local ST is available in the said recruitment. Clause 9 under which petitioners were appointed on contract basis is contrary to the statutory mandate and therefore their appointment made in terms of said clause is not valid in the eye of law and is void abinitio.

6.

Be that as it may, it is not the case of petitioners that subsequent notifications were issued but even by now there is no eligible ST candidate available to man those posts. Admittedly, petitioners were appointed as a stop gap arrangement on contract basis and their continuation is subject to non availability of local ST candidates and they should give way to ST candidates as and when they are available. Availability of ST candidates can be known only

after an endeavor is made by conducting recruitment process. It appears no such recruitment process is conducted after 2007. 7.

Be that as it may, show cause notice only calls upon the petitioners to explain as to why their services cannot be terminated. The only basis for challenging the said show cause notice is that petitioners are appointment in accordance with Clause 9 of the notification, therefore their appointment is valid and they can be replaced only after eligible ST candidates are available. As this Court is of the view that paragraph 9 of the notification itself is illegal and contrary to the statutory mandate, by invoking the said clause, petitioners cannot seek to perpetuate their employment in schedule areas, depriving opportunity of public employment to the local ST candidates and such claim cannot be countenanced and on that ground show cause notice cannot be declared as illegal.

8.

Therefore, the writ petition is dismissed. The competent authority is directed to take appropriate course of action as warranted by law within four weeks from the date of receipt of copy of the judgment. 9.

It is also appropriate to note at this stage that the very objective of notifying the scheduled areas and reserving posts in the Agency areas for the local schedule tribes is defeated by the manner of conducting recruitment as noticed from Advertisement No. 1 of 2007, under which petitioners were appointed. It is hoped and excepted that remedial steps would be taken now to remove such kind of practices in future. No costs. Having regard to the same, miscellaneous petitions, if any pending, are closed. ______________ P NAVEEN RAO,J DATE:27.7.2017 TVK

Date :27.7.2017