Telangana High Court
Smt. K.Neelima vs The State Of Ttelangana on 17 October, 2024
THE HONOURABLE SMT. JUSTICE T.MADHAVI DEVI
W.P.No. 8446 of 2020
ORDER:
In this writ petition, the petitioner is seeking to set aside the G.O.Rt.No.217, dated 05.06.2020 by declaring it as bad, illegal, arbitrary and discriminatory, amounting to colorable exercise, misuse of power in relaxing the rules contrary to Telangana Urban Development Authorities Service Rules, 1988 and in violation of fundamental rights of the petitioner, against public interest and unconstitutional and consequently to direct the respondents No.1 & 2 to effect promotions to the cadre of Planning Officer strictly in accordance with the special rules and to promote the petitioner as Planning Officer based on her qualifications, eligibility and seniority with effect from the date of availability of vacancy and/or with effect from the date of decision of the official respondents to fill up the existing vacancies of Planning Officer with all consequential benefits and to pass such other order or orders in the interest of justice.
2. Brief facts leading to the filing of the present writ petition are that on 13.07.2009 the petitioner along with 10 others was appointed as a Junior Planning Officer (JPO) in the respondent No.2 organization pursuant to the notification issued in the year 2009 after going through the selection process. The 2 TMD,J W.P.No.8446 of 2020 petitioner and others are admittedly by governed by the Andhra Pradesh Urban Development Authorities Service Rules, 1988, issued in G.O.Ms.No.611 and the next post of Assistant Planning Officer (APO) can be filled up from the post of Junior Planning Officer (JPO). In the year 2015, some of the co-recruitees of the petitioner in the cadre of JPO were promoted as APO's vide G.O.Ms.No.154, dated 04.11.2015. The petitioner and other co- recruitees were also promoted as APO's vide G.O.Ms.No.209, dated 15.07.2016 and the petitioner has been functioning as APO since then. It is stated that after bifurcation of the State of Andhra Pradesh into the States of Telangana and Andhra Pradesh, the above mentioned A.P.Rules of 1988 were adopted by the State of Telangana under A.P.Reorganization Act vide G.O.Ms.No.165, dated 01.06.2016. As per the said rules, the qualifications required for APO's to be promoted as Planning Officer (PO) were specifically mentioned and it is submitted that the petitioner acquired the said qualification and has also completed the required service of three years as APO and therefore became fully eligible for promotion to the post of Planning Officer. It is stated that out of several co-recruitees in the cadre of JPO, who were promoted as APO's, only four candidates including the petitioner were eligible and qualified as per the said rules to be promoted as Planning Officers. Therefore, 3 TMD,J W.P.No.8446 of 2020 on acquiring the qualification and eligibility, the petitioner submitted a representation on 01.10.2019 to consider her case for promotion. Subsequently, in the year 2019-2020, several representations were made by the petitioner and other eligible candidates for promotions. However, no promotions were granted.
3. It is stated that vide orders dated 05.06.2020, the respondent No.1 relaxed the rules of 1988 and considered the qualifications held by the respondent No.3 as eligible by stating that such relaxation shall not be treated as a precedent in further reference and vide G.O.Rt.No.217, conditions were relaxed and the respondent No.3 was promoted as Planning Officer. The petitioner made a representation on 08.06.2020 against the said promotion given to the respondent No.3, but no action has been taken thereon and therefore, the present writ petition has been filed.
4. Initially, this Court had granted interim direction that no promotions shall be effected to the post of Planning Officer in HMDA-Respondent No.2 office pending disposal of the writ petition. The said interim order was extended from time to time.
5. Thereafter, I.A.No.3 of 2020 was filed by the respondent No.2 & I.A.No.4 of 2020 was filed by the respondent No.3, both seeking vacation of the interim order dated 4 TMD,J W.P.No.8446 of 2020 22.06.2020. This Court, vide orders dated 23.03.2021, has however, modified the interim order dated 22.06.2020 directing the respondent No.2 not to give promotion to respondent No.3 alone and to give promotions to the post of Planning Officer in the interest of administration. It is stated that pursuant to the modified interim order dated 23.03.2021, the official respondents have taken up the exercise of filling up the posts and have promoted four officers as Planning Officers i.e., Smt.K.Shalani, Smt.P.Gopika Ramya, Smt.D.Vignana Tejaswi and Smt.K.Kalpana.
6. The petitioner thereafter filed I.A.No.1 of 2022, to implead Smt.D.Vignana Tejaswi as respondent No.4 to the writ petition and objected to her promotion on the ground that the said respondent become eligible for promotion only in the panel year 2020-21 and hence she should not have been promoted. The implead petition I.A.No.1 of 2022 has been allowed by this Court vide order dated 21.08.2023 and the said person has been impleaded as respondent No.4 in the main writ petition.
7. In the meantime, the respondent No.3 has filed a Writ Appeal before the Division Bench of this Court against the modification order dated 23.03.2021. The Division Bench of this Court vide orders dated 14.12.2022 has observed that the Stay 5 TMD,J W.P.No.8446 of 2020 Vacate Petition filed by the respondent No.1 has not been placed before the learned Single Judge of this Court, which has resulted in the order dated 23.03.2021 modifying the earlier order dated 22.06.2020 allowing/permitting the respondent No.2 to proceed with the promotions to the post of Planning Officer from others while restraining the respondents from considering the case of the petitioner therein i.e., respondent No.3 in the writ petition, which in a way amounts to allowing the I.As., filed for vacating the interim orders. Therefore, the Court has allowed the I.A.No.1 of 2022 in W.A.No.731 of 2022 by setting aside the impugned order in I.A.Nos.3 of 2020 & 4 of 2020, dated 23.03.2021 and the matter was remitted back to the learned Single Judge to take up all the I.As., all together for comprehensive adjudication. It was further observed that "it is stated by the parties concerned that pursuant to the order dated 23.03.2021, modifying the interim order dated 22.06.2020, restricting grant of promotion only in respect of respondent No.3 and that the respondent No.2 has already affected promotions, the Division Bench is of the view that the respondents should be restrained from affecting any further promotions to the post of Planning Officer till the learned Single Judge adjudicates the I.As., as mentioned above comprehensively". Thereafter, the matter has been placed before this Court. 6
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8. In the meantime, the I.A.No.1 of 2023 has been filed by one of the eligible candidates for promotion to the post of Planning Officer and an affidavit has been filed by him stating that the petitioner has relied upon the Andhra Pradesh Urban Development Authority Service Rules, 1988, whereas the State Government, in exercise of powers conferred on it, has issued notification in G.O.Ms.No.115, dated 21.07.2012, amending the qualifications required for the post of Planning Officer. It is stated that as per the said G.O., the minimum qualification prescribed was B.E. (Civil) or B.Arch., or M.A. (Geography) and must possess a P.G. Degree or Diploma or one must possess a Degree in Civil Engineering or Architecture from a University with five years of service as Assistant Planning Officer or one must possess a Diploma in Civil Engineering or must have passed the Andhra Pradesh Government Examination for Certificate in Architecture or any equivalent examination with ten years service as Assistant Planning Officer for promotion. It is stated that in view of the amendment made to special rules, cause in the writ petition does not survive. It is further stated that the proposed respondent No.5 has an Associate Membership from an Institution of Civil Engineers (India), which is equivalent to degree qualifications and that he also passed Accounts Test of the Local Bodies Paper-I & Paper-II and in the final seniority list of Assistant Planning 7 TMD,J W.P.No.8446 of 2020 Officers prepared by the department vide memo No.2566/Esst./HMDA/2013, dated 27.02.2022, his name was placed at Sl.No.2, while the writ petitioner's name was placed at Sl.No.7. It is stated that the person in Sl.No.1 i.e., Sri.D.Yadagiri Rao and the person at Sl.No.3 i.e., Smt.R.Padma Rani were promoted to the post of Planning Officers and that he possesses the eligible qualifications as specified in G.O.Ms.No.115, dated 02.07.2022 and he being the next senior most in the cadre of Assistant Planning Officer, was eligible for promotion to the post of Planning Officer. It is stated that due to the orders passed by the Division Bench in the Writ Appeal, the respondents were restrained from taking up any promotions and that there is a clear vacancy of Planning Officer consequent to the promotion of one Sri Vikas from the post of Planning Officer to the post of Chief Planning Officer and the proposed respondent No.5 is the eligible candidate to be promoted in the resultant vacancy. It is stated that if the writ petition is not disposed of expeditiously and if he is not made a party to the writ petition, he will be put to a serious and irreparable loss and therefore, the implead petition was filed by him. The said I.A.No.1 of 2023 has been allowed by this Court vide orders dated 19.10.2023 and the petitioner in I.A.No.1 of 2023 has been impleaded as respondent No.5 to the writ petition. 8
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9. Thereafter, the petitioner has filed I.A.No.2 of 2022 seeking amendment of the prayer to challenge the G.O.Rt.No.589 dated 28.08.2021 through which the respondent No.4 has been promoted. The petitioner further sought a direction to the respondents to consider the case of the petitioner by conducting review DPC of G.O.Rt.No.589 to the cadre of Planning Officer strictly in accordance with the special rules and to promote the petitioner as Planning Officer based on her qualifications, eligibility and seniority. The said petition has been vehemently opposed by the respondents and vide orders dated 24.04.2024, the said petition has been dismissed. Therefore, the original prayer of the writ petition has to be adjudicated.
10. Learned counsel for the petitioner submitted that G.O.Ms.No.611, HMA&UD (B1)(M.A.), Dated 22.11.1988, prescribed the Andhra Pradesh Urban Development Authorities Service Rules, 1988 and under the said rules for the post of Planning Officer, the method of recruitment is (i) by promotion from Category (c); or (ii) by deputation from the Category of Joint Director of Town Planning of the Andhra Pradesh State Town Planning Service; or (iii) by direct recruitment if no qualified and suitable person is available for appointment by promotion. The Category (c) is Assistant Planning Officer. The qualifications 9 TMD,J W.P.No.8446 of 2020 prescribed for the purpose of promotion to the post of Planning Officer are as under:
"(1) Post-Graduate Degree or Diploma in Town Planning from a recognized University in India established or incorporated by or under a Central Act or a provisional Act or a State Act or an institution recognized by the University Grants Commission; or Associate of the institute of Town Planners India or equivalent membership of a foreign professional institute such as Royal Town Planning Institute (London) or American Institute of Planners.
(2) Must have served as Assistant Planning Officer for atleast a period of three years".
11. Learned counsel for the petitioner further submitted that these rules have been adopted by the State of Telangana vide G.O.Ms.No.165, dated 01.06.2016 and there have been no amendments to the said rules. It is submitted that the petitioner has completed three years of service as Assistant Planning Officer after her promotion vide G.O.Ms.No.209, dated 15.07.2016 and had also secured apprenticeship certificate from the Institute of Town Planners, India with regard to apprenticeship examination conducted by the Town Planning Examination Board of the Institute on 27.08.2019. It is further submitted that she was eligible for promotion to the next post and she has made a representation to the HMDA, for consideration of her candidature for promotion in view of her eligibility for promotion to the next cadre. It is submitted that other representations dated 10 TMD,J W.P.No.8446 of 2020 02.12.2019, 07.12.2019 and 13.02.2020 were also submitted to the respondents, but there was no action taken by the respondents and therefore, the petitioner has filed the present writ petition.
12. Learned counsel for the petitioner submitted that without any amendment to the rules, the respondents could not have issued promotion order to the respondent No.3, who was promoted as Planning Officer on his representation and to consider his qualification of Post-Graduate Degree in Architecture for promotion in relaxation of Service Rules of 1988 and have thus passed G.O.Ms.No.217, dated 05.06.2020. It is submitted that when there are eligible and qualified candidates, the employer could not have relaxed the required qualifications as required under law/rules to favour unqualified candidates and that since the respondent No.3 was not qualified and lacked the required qualifications as mentioned in Rules 1988, the impugned G.O., relaxing the service rules/qualifications is illegal and arbitrary. It is further submitted that the respondent No.3 had also applied for permission to pursue the qualifications required under the rules, but could not obtain the said qualification and when the petitioner and others have acquired the necessary qualification, the respondents ought not to have considered the representation of the respondent No.3 to relax the 11 TMD,J W.P.No.8446 of 2020 condition. It is further submitted that there are several other APO's who have PG Degree in Architecture, M.Tech in remote sensing and GIS and M.Tech in Geoinformatics and surveying technology, but the benefit of relaxation was conferred only on the respondent No.3 and the relaxation ought not to have been given to only respondent No.3 and that it has caused undue hardship to the petitioner and others who were qualified and were eligible for promotion and in the process have lost their promotion and also seniority in the post of Planning Officer.
13. In support of the contentions that the respondents cannot relax the qualifications mentioned in the rules without amendment of rules, the learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of K.Balarama Raju Vs. V.Subramanya Sarma and Others 1.
14. Learned counsel for the petitioner further referred to Rule 31 of Andhra Pradesh State and Subordinate Service Rules, which provides for relaxation of rules by the Governor and submitted that under the said rule, relaxation can be allowed only if such relaxation is considered necessary in the public interest or where the application of such rule or rules is likely to cause undue hardship to the person or class of persons concerned. It is 1 (2011) 13 SCC 574 12 TMD,J W.P.No.8446 of 2020 submitted that in this case, the respondents have not demonstrated as to how the relaxation was necessary in the public interest or as to how the existing rules are likely to cause undue hardship to the person or class of persons concerned. He also filed the copy of the decision taken by the Government of Andhra Pradesh Municipal Administration & Urban Development Department in letter No.16365/B1/2006, M.A., dated 24.10.2006 and Memo No.5834/B1/2017, dated 19.09.2017, wherein the proposal from HUDA dated 26.08.2006 for relaxation of the rules as a matter of policy and as per the judgment of the Apex Court was considered and it was observed that the qualification prescribed for the post cannot be relaxed in favour of the individuals and in the Memo dated 19.09.2017, the representation of the respondent No.3 himself for relaxation of qualification and minimum service, was held as not feasible for consideration and it was rejected. Therefore, according to him, the respondents have clearly shown undue haste in relaxing prescribed qualifications only for respondent No.3.
15. Learned counsel for the petitioner also placed reliance up on the judgment of the Hon'ble Supreme Court in the case of Union of India and Another Vs. Hemraj Singh Chauhan 13 TMD,J W.P.No.8446 of 2020 and Others 2 , to contend that this Court can give suitable directions in order to mitigate the hardship caused by denial of legitimate rights of the employees, where the Court is satisfied that for the delayed exercise of statutory function, the Government has not offered any plausible explanation. Learned counsel for the petitioner prayed that in view of the said judgment, the respondents be directed to consider the case of the petitioner and promote her from the date of her eligibility or from the date when the vacancies have arisen.
16. Learned counsel for the petitioner also placed reliance upon the order of this Court in W.P.No.35976 of 2017, dated 21.06.2019, wherein the Court had directed the respondents therein to consider the case of the petitioner therein for promotion to the post of Assistant Conservator of Forests for the panel year 2016-17 by convening a review DPC and upon such consideration, to promote the petitioner therein to the post of Assistant Conservator of Forests for the panel year 2016-17 with all consequential benefits. He therefore submitted that the petitioner should be given similar relief by directing the respondents to consider her case for promotion from the date of her eligibility or from the date of the vacancies. 2 SLP (C) Nos.6758, 6759/2009, dt.23.03.2010 14 TMD,J W.P.No.8446 of 2020
17. Learned counsel appearing for the respondents have relied upon the averments made by the respondents in their respective counter affidavits along with Stay Vacate Petitions. The respondent No.1, in his counter affidavit, stated that the respondent No.3 was appointed as Junior Planning Officer on 20.07.2009 by direct recruitment based on the basic qualification of B.Arch., from Jawaharlal Nehru Technological University (JNTU) and that he also possessed M.Arch., from JNTU and Masters in Ecology and Environment from Manipal and Skikkim University and was promoted as Assistant Planning Officer on 09.11.2015. It is submitted that the MC, HMDA in his letter dated 09.06.2017 and 04.06.2018, has stated that the post of Planning Officer in HMDA is equivalent to the post of Deputy Director in DTCP and the service rules prescribed for the promotion to the post of Planning Officer in HMDA and promotion to the post of Deputy Director in DTCP were similar. It is submitted that under the DTCP Service Rules, the Assistant Directors (equivalent to APO in HMDA) with B.Arch., qualification are considered for promotion to the post of Deputy Director (equivalent to Planning Officer in HMDA) and the duties of Planning Officers in HMDA and Deputy Directors in Town and Country Planning are similar and therefore, the respondent No.2 had entrusted the Government to issue necessary amendment order to the post of 15 TMD,J W.P.No.8446 of 2020 Planning Officer (by promotion) issued vide G.O.Ms.No.611, MA&UD Department, dated 22.11.1988 and in view thereof, the file has been circulated to the competent authority to the proposal of HMDA for considering the qualification of Post Graduate Degree in Architecture as eligible for promotions Sri.V.Dheeraj Kumar i.e., respondent No.3, herein as Planning Officer in relaxation of rule 6(2)(b) of Andhra Pradesh Urban Development Authorities Service Rules, 1988, then Telangana adaptation order of 2016 issued vide G.O.Ms.No.165, dated 01.06.2016 as a Special Case and after approval, orders have been issued vide G.O.Rt.No.217, dated 05.06.2020. It is further submitted that for effecting promotions to the post of Planning Officer, as per the orders issued in G.O.Rt.No.125, MA&UD (B1) Department, dated 23.02.2018, the MC, HMDA is competent authority.
18. There is no counter affidavit filed by the respondent No.2. The respondent No.3 has filed a counter affidavit supporting the impugned order of promotion.
19. The petitioner has also filed reply affidavits to the counters filed by the respondents No.1 and 4, reiterating the submissions made in the writ affidavit.
20. Learned Government Pleader relied upon the averments made in the counter affidavit and also placed on 16 TMD,J W.P.No.8446 of 2020 record the G.O.Rt.No.115, dated 02.07.2022, whereunder the qualifications for promotion to the post of Planning Officer has been amended to include a pass in the Andhra Pradesh Government Examination in certificate in Architecture (new rules) and pass in Government examination in certificate in Architectural Draughtsmanship and Assistantship, as eligibility for promotion to the post of Planning officer. It is submitted that a pass in Government examination in certificate in Architectural Draughtsmanship and Assistantship will be considered equivalent to Licentiate in Architectural Draughtsmanship and Assistantship in the case of the present incumbents and; also that it also prescribes that they must also possess a Diploma in Civil Engineering or must have passed the Andhra Pradesh Government examination for Certificate of Architecture (new rules) or any equivalent examination with ten years service as Assistant Planning Officer.
21. Learned Government Pleader also placed reliance upon the decision of the Hon'ble Supreme Court in the case of V.Lavanya and Others Vs. State of Tamil Nadu 3 , for the proposition that the Courts should not interfere with the policy decisions taken by the State Government for relaxation of rules/marks for TET pass in the relevant case. He also placed 3 (2017) 1 SCC 322 17 TMD,J W.P.No.8446 of 2020 reliance upon the judgment of Division Bench of this Court in I.A.Nos. 1, 2, 3 of 2019 in/and W.P.No.507 of 2019, dated 20.12.2019, wherein the issue under consideration was whether the Government can exercise the power to grant relaxation of Rule 16(h) or any other Rule under Rule 31 of Andhra Pradesh State and Subordinate Service Rules and it was held that the Governor has such power and the petitioner cannot be said to have any locus to challenge the grant of applicability of Rule 16(h) to the respondent No.8 therein. He further placed reliance upon the decision of the Hon'ble Supreme Court in the case of Zile Singh Vs. State of Haryana and Others 4 , for the proposition that where one text is substituted for the, pre-existing text it results in repeal of the earlier provision and its replacement by the new provision and thus, according to him, after the amendment of rules, the rules have to be applied retrospectively and the respondent No.3 has rightly been considered for promotion. He further placed reliance upon the decision of Hon'ble Supreme Court in the case of Puneet Sharma and Others Vs. Himachal Pradesh State Electricity Board Limited and Another 5, for the proposition that where there is a clarificatory amendment, it operates retroactively, despite their enforcement prospectively. He 4 (2004) 8 SCC 1 5 (2021) 16 SCC 340 18 TMD,J W.P.No.8446 of 2020 therefore, prayed for vacation of interim order and also for dismissal of the writ petition.
22. Having regard to the rival contentions and the material on record, this Court finds that admittedly the respondent No.3 did not possess the qualifications prescribed under G.O.Ms.No.611, dated 22.11.1988, as he possessed a Post Graduate Degree in Architecture which may be the prescribed qualification for the post of Assistant Planning Officers in DTCP Department, but not for the post of Planning Officers in MA&UD Department. Admittedly, the rules have not been amended when the case of respondent No.3 was under consideration of the Government for relaxation of rules. The rule has been amended only subsequently i.e., in the year 2022 and it cannot be applied retrospectively. The decision relied upon by the learned counsel for the respondents for retroactive application, is distinguishable on facts. In the said case, there was no amendment, but it was substitution of rules and therefore, the Hon'ble Supreme Court has held that the substitution replaces the earlier rule and has to be considered as applicable retrospectively.
23. In the case before this Court, the rules have been amended in the year 2022 i.e., after relaxing the rule particularly for the respondent No.3 and therefore, it cannot be applied 19 TMD,J W.P.No.8446 of 2020 retrospectively. Further, the Government claims to have exercised the power under Rule 31 of Andhra Pradesh State and Subordinate Service Rules. However, as rightly pointed out by the learned counsel for the petitioner such power of relaxation can be exercised by the Government in public interest and the Government itself, on the earlier occasion, has taken a stand in the case of respondent No.3 that the relaxation of powers cannot be exercised in the case of individuals. The reason for taking a 'U' turn and a contrary stand subsequently has not been explained by the respondent No.1. In his counter affidavit, the respondent No.1 has only stated that the respondent No.3 has submitted a representation for relaxation of Rules and since the post of Planning Officer is similar to the post of Assistant Director in Town and Country Planning Department, his case has been recommended to the Government for acceptance. The respondents No.1 and 2 have not given any other reason justifying the relaxation of rule in favour of respondent No.3 only. It is no where stated in the counter affidavits filed by any of the respondents, that the petitioner is not eligible and qualified for promotion to the post of Planning Officer. The only stand taken by the official respondents is that the petitioner is not senior to the respondents No.4 and 5. In spite of a direction from this Court to consider the case of the petitioner also for promotion to 20 TMD,J W.P.No.8446 of 2020 the post of Planning Officer, solely on the ground that her writ petition is pending before this Court, her case has been ignored and others have been considered for promotion. This clearly is in violation of the directions of this Court. The judgments relied upon by the learned counsel for the petitioner, clearly provide that the promotions can be made strictly in accordance with the extant rules and in this case, the relaxation of rule in favour of respondent No.3 is not only in clear violation of mandate of Rule 31, but also in clear violation of principles of natural justice. The justification given for relaxation of rules in favour of respondent No.3 is lack of eligible candidates for promotion. The same does not appear to be correct. The contention of the petitioner is that she has completed three years of service as on the date of consideration of the case of the respondent No.3, is also not found to be correct, as she was promoted as Assistant Planning Officer only in the year 2016 and she would have completed three years of service only in the year 2019 and she would be eligible for consideration in the panel year 2019-2020.
24. In view of the above, this Court deems it fit and proper to direct the respondents to consider the case of the petitioner for promotion depending on her eligibility and suitability in the panel year in which the petitioner has become eligible for the same provided there was a vacancy at the relevant 21 TMD,J W.P.No.8446 of 2020 point of time and the petitioner shall be granted notional seniority from the date of her eligibility or the date of the vacancies, whichever is later with all consequential benefits.
25. Accordingly, the writ petition is allowed. There shall be no order as to costs.
26. Miscellaneous petitions, if any, pending including I.A.No.2 of 2023 in this writ petition, shall stand closed.
_____________________________
JUSTICE T.MADHAVI DEVI
Date: 17.10.2024
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