ANANTAPURAMU-515001, A.P v. ASSISTANT

This Writ Petition came to be filed under Article 226 of the Constitution of India, seeking the following prayer:

…to issue any writ, order or direction particularly the nature of WRIT OF MANDAMUS declaring declaring the Executive Council resolution No.159-2964(A-4) Dated. 13-10-2017 as illegal, irrational, arbitrary and is not applicable to those of Non-Teaching employees who are in service as on the date of passing of the said resolution, and cleared the departmental tests conducted by the University and in respect of the vacancies available prior to the resolution and consequently direct the respondent University to promote all the petitioners who cleared the departmental tests conducted by the University against the available vacancies and pass…

The petitioners herein are working in various cadres of non- teaching staff in the 1st respondent university, which came into existence in the year 1981 and is governed by the provisions of Andhra Pradesh Universities Act, 1991. The 1st respondent university framed service cadre rules for non-teaching staff and the same was approved by the Board of Management vide resolution No.320 (A.2), dated 11.07.1992. As per the said regulation, the petitioners appeared for departmental tests conducted by the University from time to time and attained eligibility for promotion to the higher cadre as stipulated under the cadre rules. 10 VS,J W.P.No.2348 of 2018

While the matter stood thus, the 2nd respondent – Andhra Pradesh State Council of Higher Education, vide letter bearing No.APSCHE/UM-1052/FO-Univ-Accounts Test/2017, dated 04.09.2017 advised all the universities in the State to mandate passing of accounts test for Sub-Ordinate Officers Part-I for promotion to the post of Senior Assistant and Accounts Test for Sub-Ordinate Officers Part-I and II or Executive Officers test for promotion to the post of Assistant Registrar conducted by Andhra Pradesh Public Service Commission. The 2nd respondent further held that the universities have no jurisdiction to conduct accounts test. Pursuant to the said direction, the Executive Council of the 1st respondent, vide the impugned resolution bearing No.159-2964(A-4), dated 13.10.2017, resolved to consider the letter addressed by the 2nd respondent dated 04.09.2017 and accorded permission to conduct departmental test to non-teaching staff through APPSC for promotions to the posts of Senior Assistant and Assistant Registrar. It is the case of the petitioners that the 2nd respondent is not empowered to direct the 1st respondent university to place its advice before the Executive Council for consideration and that the 2nd respondent invaded the autonomy of the 1st respondent university. The impugned resolution is contrary to the earlier resolution passed by the Board of Management of the 1st respondent university dated 11.07.1992. Hence, the present writ petition is filed. 11 VS,J W.P.No.2348 of 2018

The 2nd respondent filed a detailed counter affidavit stating that the 1st respondent university is governed by Andhra Pradesh University Act, 1991 and the Executive Council of the 1st respondent has the power to define duties, conditions of service, fixation of emoluments, appoint, dismiss, remove or suspend any member of non-teaching staff as under Section 19(7) and (8) of the A.P. University Act, 1991. It is further stated that the Andhra Pradesh Public Service Commission has been conducting various departmental test for various departments of the State and Universities. However, the 1st respondent university has not updated the service rules of the non-teaching staff either in conformity with the rule of the 3rd respondent or with the rules of the 2nd respondent. It is further stated the 3rd respondent, vide G.O.Ms.No.411, General Administration department dated 18.07.2011 issued orders declaring that the pass in accounts test for executive officers is not equivalent to pass in the accounts test for sub-ordinate officers part-I and part-II. Later, the 3rd respondent clarified that Government servants who passed accounts test for sub-ordinate officers part-I and II can be exempted from passing accounts test for executive officers, but the Government servants who have passed accounts test for executive officers cannot be exempted from a pass in accounts test for sub-ordinate officers part I and II.

The 3rd respondent, letter dated 12.04.2017 communicated the mandatory guidelines made out in report dated 12 VS,J W.P.No.2348 of 2018

27.01.2017 to all the universities, as per which, in addition to the departmental tests conducted by AP Public Service Commission, the Universities are required to conduct standardized tests covering statutory provisions, statutes, academic regulations, affiliation rules, service rules, accounts rules etc. As such, the claim of the petitioners that the departmental tests conducted by the 1st respondent is to be considered for their promotions cannot be sustained as the 1st respondent university is not authorized to conduct departmental tests. The departmental test conducted by the 1st respondent university, which is a statutory body cannot override the departmental test conducted by the APPSC which admittedly is a constitutional body. The advice of the 2nd respondent to all the universities is with a view to improve quality in administrative governance and avoid administrative and financial irregularities. It is further stated that the 3rd respondent has extended State Sub-Ordinate Service Rules to all universities vide Government letter bearing No.1398958/UE/A2/2021, dated 03.11.2021. The impugned resolution passed by the 1st respondent university is part of administrative reforms and the same need not be interfered with by this Court. Hence, requested to dismiss the writ petition.

The 8th respondent filed a counter affidavit in similar lines to that of the 2nd respondent, however, it was specifically contended that the respondent university received recommendations of APSCHE on 13 VS,J W.P.No.2348 of 2018

04.09.2017; that Andhra Pradesh Public Service Commission conducted departmental tests in November – 2017, May – 2018 and November – 2018 wherein, all the petitioners have participated, however, being unsuccessful in the said examination, the present writ petition is filed. Hence, requested to dismiss the writ petition.

Sri. P.B. Vijay Kumar, learned Senior Counsel appearing for Smt. A.V. Laxmi, learned counsel for the petitioners; Sri. O. Udaya Kumar, learned Standing Counsel for 1st respondent, Smt. K. Radhika, learned counsel for the 2nd respondent and Sri. S. Harinath Reddy, learned counsel for respondent Nos.4 to 12.

During the course of arguments, learned counsel for the petitioners submits that the impugned resolution dated 13.10.2017, passed pursuant to the letter dated 04.09.2017 issued by the 2nd respondent, is arbitrary, without jurisdiction and contrary to the provisions of the Andhra Pradesh Universities Act, 1991. It is contended that the 1st respondent University, being an autonomous statutory body, framed the Service Cadre Rules for its non-teaching staff, which were approved by the Board of Management on 11.07.1992. In accordance with the said Rules, the petitioners passed the departmental tests conducted by the University and became eligible for promotion. The learned counsel submits that the 2nd respondent has no authority to direct the 1st respondent University to conduct departmental through 2nd 14 VS,J W.P.No.2348 of 2018 respondent or to alter the existing Service Cadre Rules. It is further contended that the Executive Council of the 1st respondent mechanically acted upon the advice of the 2nd respondent, thereby compromising the statutory autonomy of the University. Since the Cadre Rules have not been amended in accordance with law, the respondents cannot impose APPSC Accounts Tests as an additional condition for promotion. Hence, requested to set aside the impugned proceedings.

On the other hand, learned Standing Counsel respondent university submits that the impugned resolution is valid and was passed by the Executive Council of the 1st respondent University in exercise of its powers under Sections 19(7) and 19(8) of the Andhra Pradesh Universities Act, 1991. It is contended that the University's Service Rules were not updated in accordance with the Government guidelines and the recommendations of the Andhra Pradesh State Council of Higher Education. The 2nd respondent, being a constitutional body, is the competent authority to conduct departmental tests, and the University cannot conduct such tests on its own. The impugned resolution was passed to ensure uniform standards, improve administrative efficiency, and prevent financial irregularities. The learned counsel further submits that all the petitioners participated the APPSC departmental examinations conducted subsequent impugned resolution, petitioners succeeded and were promoted to the next higher cadre but, 15 VS,J W.P.No.2348 of 2018 certain petitioners failed to qualify. Having participated in the selection process without objection, they cannot now challenge the impugned proceedings. Therefore, the writ petition is liable to be dismissed.

Perused the entire material available on record. The petitioners, who are non-teaching employees of the 1st respondent University, challenged the proceedings dated 04.09.2017 issued by the 2nd respondent and the consequential Resolution dated 13.10.2017 passed by the Executive Council of the 1st respondent University, whereby departmental tests for promotion to the posts of Senior Assistant and Assistant Registrar were directed to be conducted through the 2nd respondent – Andhra Pradesh Public Service Commission (APPSC). It is the case of the petitioners that as per the Service Cadre Rules approved by the respondent University in the year 1992 the University itself can conduct departmental tests and that the 2nd respondent had no authority to interfere with the autonomy of the respondent University or alter the existing service conditions. However, from the material available on record, it can be seen that the Executive Council, being the competent authority under Sections 19(7) and 19(8) of the Andhra Pradesh Universities Act, 1991, is empowered to regulate the conditions of service of the non-teaching staff and to take administrative decisions concerning promotions. Sections 19(7) and 19(8) of the Andhra Pradesh Universities Act, 1991 reads as under: 16 VS,J W.P.No.2348 of 2018 Section 19(7): Gives the Executive Council the power to appoint, dismiss, remove, or suspend any member of the non-teaching staff of the university. Section 19(8): Gives the Executive Council the power to fix the pay and financial allowances (emoluments) for the employees of the university.

The impugned resolution was passed by the Executive Council the exercise of its statutory powers, keeping in view recommendations of the Andhra Pradesh State Council of Higher Education and the need to maintain uniform standards in departmental examinations. Merely because the University had earlier conducted departmental tests does not preclude it from adopting a different procedure in the interest of administrative efficiency and uniformity.

It can also be observed that, pursuant to the impugned resolution, many of the petitioners have participated in the departmental examinations conducted by the APPSC, successfully qualified therein, and were consequently promoted to the next higher post. The remaining petitioners also participated in the said examinations without raising any objection but could not qualify. Having voluntarily subjected themselves to the selection process under the impugned resolution and having taken a chance of securing promotion, the petitioners cannot now turn around and challenge the very procedure to which they had willingly submitted. It is a settled principle of law that a candidate who participates in a selection 17 VS,J W.P.No.2348 of 2018 process without protest and takes a chance of being selected is estopped from questioning the process after being unsuccessful. The said list of the petitioners is as under Petitioner No.

It can be seen that petitioner Nos. 3, 4, 5, 6, 12, 13, 17, 19, 25, 27, 29, 33, 34, 35, 39, 40, 41, 46, and 47 have passed the departmental tests conducted by the 2nd respondent and were promoted to the next higher cadre. Petitioner Nos. 2, 9, 10, 20, 21, 23, 32, 37, 38, 42, and 43 got retired from service upon attaining the age of superannuation. However, petitioner No.1, 8, 11, 14, 15, 16, 18, 22, 26, 30, 31, 44 and 45 have not passed the departmental tests conducted by the 2nd respondent. Having taken part in the examination process with full knowledge that they would be promoted if they had passed the examination, the petitioners waived their right to question the impugned resolution passed by the respondent university. It is a well settled principle of law that when a candidate appears at an examination without objection and 24 VS,J W.P.No.2348 of 2018 subsequently found to be not successful, a challenge to the process is precluded.

In view of the foregoing discussion, this Court finds no merits in the present writ petition and the same deserves to be dismissed.