Andhra HC (Pre-Telangana)
Chairman, Viskahapatnam Port Trust And ... vs S. Satyanarayana And Ors. on 13 August, 2002
Equivalent citations: 2002(6)ALD221
JUDGMENT
S.R. Nayak, J,
1. These writ appeals preferred by the Management of the Visakhapatnam Port Trust, Visakhapatnam, and its authorities are directed against the Order of the learned single Judge dated 4.1.2002 in WP Nos. 15829, 23448, 23449, 23447 and 23446 of 2001. Initially WP No. 15829 of 2001 was filed by the respondents herein seeking the relief as follows:
"Hence, it is prayed that this Hon'ble Court may be pleased to issue a writ or direction more particularly one in the nature of writ of mandamus or direction directing the 1st and 2nd respondents to give notional promotions to all the petitioners according to their seniority/eligibility in respect of their cadre and pay the consequential retiral benefits in the said posts with immediate effect on par with the junior reserved candidates as per the decision of the Apex Court which was reported in AIR, 2001 SC 260 and pass such other order or orders as this Hon'ble Court may deem fit and proper".
In the said writ petition, on an application made by the petitioners, this Court in WPMP No.19821 of 2001 directed the Management of the Visakhapatnam Port Trust to consider and dispose of the representations of the petitioners. The representations of the petitioners were considered and rejected by the Management of Visakhapatnam Port Trust by a separate proceeding dated 28.9.2001 in respect of each of the petitioners. Being aggrieved by those rejection orders, the individual petitioners filed WP Nos. 23446, 23447, 23448, 23449 and 23450 of 2001. In the meanwhile, the petitioners complaining that the interim direction issued by the learned single Judge in WP MP No. 19821 of 2001 was not complied with by the Management of the Visakhapatnam Port Trust, filed Contempt Case No. 1189 of 2001. All the writ petitions' and the contempt case were clubbed and they were heard by a learned single Judge of this Court.
2. Opposing the Writ Petition No. 15829 of 2001, on behalf of the Visakhapatnam Port Trust, counter affidavit was filed. In para 11 of the counter affidavit it is stated thus:
"All the posts from clerk to Dy. CAO are covered by scheme of reservation and the reserved candidates get preference over the general candidates. By virtue of reservation, the reserved candidates get priority in the matter of promotions. From the post of Dy. Financial Adviser and Chief Accounts Officer right upto the post of Financial Adviser and CAO are not reserved posts. Once reserved candidates come up to the post of Dy. FA&CAO and even if general candidates are promoted to the same post, subsequent to reserved candidates, then the general candidates are entitled to seniority over the reserved candidates and that is not a reserved post. In this case at the time of retirement as all of them had opted for VRS. So by virtue of Judgment, the petitioners had referred to and the representations, they did not get seniority over the reserved candidates, except to the extent indicated in the aforementioned paragraphs".
In the other writ petitions also counter affidavits are filed opposing the reliefs sought in the writ petitions. In the counter-affidavit filed in WP No. 23447 of 2001 in para 6 thereof it is stated thus:
"All the posts from clerk to Dy.CAO are covered by scheme of reservation and the reserved candidates get preference over the general candidates. By virtue of reservation, the reserved candidates get priority in the matter of promotions. From the post of Dy.Financial Adviser and Chief Accounts Officer right upto the post of Financial Adviser & CAO are not reserved posts. Once reserved candidates come up to the post of Dy. FA&CAO and even if general candidates are promoted to the same post, subsequent to reserved candidates, then the general candidates are entitled to seniority over the reserved candidates and that is not a reserved post. In this case at the time of retirement, the petitioner had opted for VRS. So by virtue of judgment, the petitioner's reference to the 3rd respondent is. not proper and the petitioner cannot get any seniority over the 3rd respondent".
Similar contentions are raised by the respondent-Visakhapatnam Port Trust in other writ petitions also.
3. The learned single Judge on referring to the decisions of the Supreme Court in M.G. Radappanavar v. State of Karnataka, AIR 2001 SC 260, and Ajit Singh (II) v. State of Punjab, , has held that the petitioners are entitled to the reliefs sought by them in the writ petitions. Accordingly the learned single Judge by the orders impugned in these writ appeals allowed the writ petitions. Hence these writ appeals by the Management of the Visakhapatnam Port Trust.
4. We have heard Ms. Uma, learned Standing Counsel for the appellants-Visakhapatnam Port Trust and Smt. A.Padma, learned Counsel for the respondents-writ petitioners. Ms. Uma contended that the ratio of the judgment of the Apex Court in M.G. Badappanavar's case (supra) and Ajit Singh II (supra) has no application at all to the facts of this case.
Ms. Uma specifically drew our attention to para (14) of the judgment in M.G. Badappanavar's case (supra) and contended that in the organization of the appellants-Visakhapatnam Port Trust, the reservation and roster are applicable only upto the post of Deputy Chief Accounts Officer and they are not applicable to the posts of Deputy Finance Adviser and Chief Accounts Officer, Senior Deputy Finance Adviser and Chief Accounts Officer and Financial Adviser and Chief Accounts Officer which are selection posts and that in the instant case the maximum promotion earned by the writ petitioners-respondents is the promotion to the post of Superintendent (Accounts), and beyond the post of Superintendent (Accounts), two more promotional posts, namely, the post of Accounts Officer and the post of Deputy Chief Accounts Officer to which also the reservation and roster are made applicable, exist. In conclusion, Ms. Uma contended that the learned Judge erred in law in applying the ratio of the judgments in M.G. Badappanavar's case (supra) and Ajit Singh II (supra) to the facts of this case.
5. Smt. Padma, learned Counsel for the writ petitioners - respondents, on the other hand, strenuously contended that in the impugned orders the Management of the Visakhapatnam Port Trust in an unmistakable language it is stated that no reservation applies to any post beyond the post of Superintendent (Accounts) and that all those higher posts are filled by way of selection only. Therefore, the learned single Judge is justified in applying the ratio of the judgment in M.G. Badappanavar's case (supra). Smt. Padma, in order to substantiate her contention, placed before us a comparative statement to show that the writ petitioners and the reserved candidates at Level III promotion Worked together for certain periods and contended that in the matter of further promotion by way of selection in terms of the judgment of the Supreme Court in M.G. Badappanavar's case (supra), the general candidates should be placed above the reserved candidates though the reserved candidates were promoted to the post concerned at Level III of promotion by applying reservation rule and the roaster.
6. Having regard to the rival contentions of the learned Counsel for the parties, the only question that arises for our decision is whether the writ petitioners, who are the general candidates, are entitled to notional promotion as prayed for in the writ petitions. In M.G. Badappanavar's case (supra), in a group of Original Applications filed before the Karnataka State Administrative Tribunal what fell for consideration was when general candidates and the reserved candidates who are appointed at Level I and the junior reserved candidates got promoted earlier at roster points to Level n and again by way of roster points to Level III, and when the senior general candidates got promoted in due course to Level III, whether the general candidates would become senior to the reserved candidate at Level III. The Supreme Court while answering to the above question stated the law in para (14). It reads as follows:
" It is clear on acts of this batch of cases that the initial recruitment of these general candidates and the reserved candidates was as Junior Engineers (now called Assistant Engineers) and then the next promotion was to the post of Assistant Executive Engineer and then to the post of Executive Engineer. At both these levels admittedly, there has been a roster 31 operating. Beyond Executive Engineer's post, there is no roster. The appellants and respondents (reserved candidates) were recruited as Junior Engineers and the appellants - general candidates were senior to one or other of the reserved candidates at Level 1. The reserved candidates thereafter got promotion as per roster points from Level 1 to Level 2 Assistant Executive Engineer). From Level 2, the roster promotees were promoted again to Level 3 as Executive Engineers by way of a further roster. The senior general candidates got promoted as per rules - either by seniority at basic level or by selection -and reached the Level 3. By that time the reserved candidates were still at Level 3. But they were promoted to Level 4 treating them as senior to the general candidates. This was done taking into account the fact that the reserved candidates reached the category of Executive Engineers earlier than the general candidates. According to Ajit Singh II, , if by the date when the reserved candidates were promoted as Superintending Engineers, the general candidates had already reached the said level by normal promotion system, then the general candidates must be treated as seniors as Executive Engineers to the reserved candidates. The general candidates had a right under Articles 14 and 15 to be considered for promotion as Superintending Engineers as seniors to the reserved candidates. This was unfortunately not done. After Ajit Singh II, this had to be rectified".
7. Should it be noticed at the threshold that in the above case the initial recruitment of the general candidates and the reserved candidates was to the post of Junior Engineers, subsequently re-designated as Assistant Engineers, and the next promotion was to the post of Assistant Executive Engineer and further promotion to the post of Executive Engineer. Under the relevant recruitment rules, promotion was provided upto the post of Executive Engineer only and beyond the Executive Engineer's post, there is no roster. In the context of the above facts, if the Statement of law made by the Apex Court is understood, it only means that if the general candidates and reserved candidates work together in the last promotional post to which reservation and the roster apply, then, in the matter of considering their case for further promotion by selection, the general candidates should be placed above the reserved candidates in the seniority list of the feeder cadre though the reserved candidates were appointed to the post in the feeder cadre before the general candidates were appointed to those posts in such feeder cadre. We are at a loss to understand how that ratio is applicable to the facts of this case.
8. Opposing the writ petitions, the Management of Visakhapatnam Port Trust has taken a specific stand that all the posts from Clerk to Deputy Chief Accounts Officer are covered by the scheme of reservation and the reserved candidates get preference over the general candidates and reservation is not applicable to the posts of Deputy Finance Adviser and Chief Accounts Officer, Senior Deputy Finance Adviser and Chief Accounts Officer and Financial Adviser & Chief Accounts Officer, which posts are filled only by way of selection. Even according to the comparative statement placed before us at the time of hearing by Smt. Padma, it is clear that none of the reserved candidates are appointed to the posts beyond the post of Deputy Chief Accounts Officer. Many of the reserved candidates have earned promotion to the level of Accounts Officer only and few of them beyond that post but below the post of Deputy Finance Adviser and Chief Accounts Officer. Simply because in M.G. Badappanavar's case (supra), the Supreme Court had to deal with three promotional posts to which reservation was made applicable and described them as Level I, Level n and Level in promotions, it cannot be said that in each and every case, regardless of the relevant recruitment rules governing appointments, the reservation should be restricted only to three levels of promotions and not more than three levels of promotions. In the instant case, reservation is made applicable to as many as seven posts, viz.; post of Clerk, Junior Assistant, Assistant Accountant, Accountant, Superintendent, Accounts Officer, Deputy Chief Accounts Officer.
9. We do not find any merit in the contention of Smt. Padma that in the impugned orders it is not stated that the reservation is applicable upto the post of Deputy Chief Accounts Officer and on the other hand, they give an impression that the reservation is applicable only upto the post of Accountant and in support of her contention, the learned Counsel drew our attention to the following paragraph in one of the impugned orders, dated 28.9.2001.
"After examining the case, it is noticed that you have been appointed as Clerk on 8.9.1967 in Accounts Department and later you were promoted to the following higher posts as JA on 9.1.1975, Asst. Accountant on 1.3.1981, Accountant on 16.6.1995 and Superintendent (Acs) on 22.7.2000. It is stated that the promotion to all the higher promotional posts is not on the basis of seniority and it is purely on merit basis and by selection only".
Of course, in that para the Visakhapatnam Port Trust having stated that Shri S.J. Gandhi has earned promotion to the post of Superintendent (Accounts) on 22.7.2000, it is further stated "that the promotion to all the higher promotional posts is not on the basis of seniority and it is purely on merit basis and by selection only". On the basis of this underlined portion of the pleading, the learned Counsel would contend that it is clear indication that reservation is applicable only upto the post of Accounts Officer and not other promotional posts above the post of Accounts Officer. This contention of the learned Counsel is not acceptable to us for more than one reason. Firstly, the Management of Visakhapatnam Port Trust in its counter has specifically contended that reservation is applied and roster is followed upto the post of Deputy Chief Accounts Officer. This is the stand not only in W.P.No. 15829 of 2001 but also the stand taken in the remaining writ petitions. Secondly, no materials are placed before us by the learned Counsel for the writ petitioners to doubt the integrity of sworn statement made by a responsible officer of the Visakhapatnam Port Trust that reservation is applied upto the post of Deputy Chief Accounts Officer. Further, the writ petitioners have not filed any reply affidavit denying the correctness of the above statement of the Visakhapatnam Port Trust. Even in the course of hearing when we wanted to satisfy ourself about the actual position, the Standing Counsel for the Visakhapatnam Port Trust, on necessary verification of the Rules and the records and on the basis of the Fax Message received by her, submitted that the reservation rule is applied upto the post of Deputy Chief Accounts Officer. If this is the factual position, we do not find any scope for applying the ratio decidendi of the decision of the Supreme Court in M.G. Badappanavar's case (supra) to the facts of this case. In conclusion, with respect, we hold that the judgment of the learned single Judge cannot be sustained. Writ appeals are, therefore, allowed and the Order of the learned single Judge dated 4.1.2002 in WP Nos. 15829, 23446, 23447, 23448 and 23449 of 2001 is set aside and the said writ petitions are dismissed without costs. No order as to costs in these appeals.