Telangana High Court
Waseem Kauser vs The State Of Telangana on 5 October, 2023
HON'BLE SRI JUSTICE J. SREENIVAS RAO
WRIT PETITION(TR) No.5211 of 2017
ORDER:
Petitioner filed O.A.No.6603 of 2015 before Andhra Pradesh Administrative Tribunal('APAT' for brevity) questioning the impugned proceedings No.A1/5992/JD/PPO/2010-15, Dt.30.10.2015 issued by 3rd respondent in discharging the petitioner from service for not fulfilling the requisite qualification on which she was given conditional appointment as illegal, arbitrary, discriminatory against the principles of Natural Justice and the law laid down by this Court and in violation of Article 14, 16 and 21 of the Constitution of India. It appears from the records that while admitting the O.A., APAT granted interim order on 07.12.2015 suspending the impugned proceedings vide RC.No.A1/5992/JD/PPO /2010-15. By virtue of abolition of APAT, the case was transferred to this Court and renumbered as W.P.(TR).No.5211 of 2017.
2. Heard Sri Pasula Laxma Reddy, learned counsel for the petitioner and learned Assistant Government Pleader for Services-I. 2
3. Learned counsel for the petitioner submits that petitioner was appointed as Junior Accountant under compassionate appointment scheme on 12.03.2010 on the ground that the petitioner's husband retired on Medical invalidation on 28.03.2009. As per the appointment order, the petitioner has to produce intermediate qualification certificate within a period of three years from the date of said appointment, as on date, the petitioner is having only X class qualification. At the request of petitioner, respondent No.3 issued proceedings on 13.06.2013 granting one year extension from 15.03.2013 and further extended another one year through proceedings dated 30.06.2014, on 07.03.2015 he had issued notice to the petitioner along with others informing them to acquire the requisite qualifications within the stipulated time. Thereafter, respondent No.3 issued Memo vide No.A1/1234/JD/PPO/2015 dated 16.03.2015 stating that the petitioner has not acquired requisite qualification as per the appointment order within a stipulated period as per G.O.Ms.No.969 dated 27.10.1995 and directed the petitioner to submit her willingness to take the lower post i.e., Attendar. Petitioner submitted representation on 27.03.2015, stating that she could not 3 secure the requisite qualification due to the health condition of her husband and also stated that she procured B.A. Degree from Dr. B.R. Ambedkar University except one paper and requested the respondents to drop the proceedings and further requested for extension of one year. Respondent No.3 forwarded the said representation to respondent No.2 to take further action. 3.1. He further submits that petitioner filed O.A.No.1660 of 2015 questioning the notice dated 16.03.2015 issued by respondent No.3 directing the petitioner to give her willingness to take the lower post i.e., Attendar. On 24.03.2015, APAT passed the following order in O.A.No.1660 of 2015:
The applicant's counsel attempted to put forward certain reasons like husband's illness for eight years resulting in his death and the applicant having two children. By the impugned notice, the applicant is not being sent out of service; and she was offered lower post to which she was eligible, as she is not eligible to hold the post of Junior Accountant, with her present qualifications. The citations relied on by the applciant's counsel viz., H.C. Puttaswamy vs. Hon'ble Chief Justice of Karnataka High Court' and M.Bucha Reddy vs. V. Bhagyamma of our high court are not applicable herein.
In the result, the original application is dismissed." 3.2. In the meanwhile, the petitioner acquired academic qualification i.e., B.A Degree in April 2015 i.e., after expiry 4 of 1 ½ months time as granted by the respondents as on 14.03.2015 and also she acquired Computer Course Certificate in September 2015 and produced all the certificates to the respondents. Respondent No.3, without taking into consideration, the above said aspect issued the impugned proceedings dated 30.10.2015, discharging the petitioner from service for not fulfilling the requisite qualification while accepting the conditional appointment. 3.3. Learned counsel vehemently contended that as per G.O.Ms.No.201, dated 08.03.1963 and also T.S State Subordinate Service Rules, 1966('Rules' for brevity) intermediate qualification is not required for the post of Junior Accountant and X class qualification is sufficient and imposing condition of acquiring intermediate qualification within stipulated time to the said post is contrary to the Rules. He further contended that the respondents issued appointment order imposing conditions basing on the executive orders issued by Government vide G.O.Ms.No.268 dated 27.10.2017 which is contrary to law. In support of his contention he relied upon the judgments of Hon'ble Apex Court in Employees' State Insurance Corporation Vs. Union of India and 5 others 1 and Sarva Uttar Pradesh Gramin Bank and others Vs. Manoj Kumar Chak 2.
4. Per contra, learned Assistant Government Pleader submits that the petitioner was appointed as Junior Accountant in Pension Payment Unit under Dependant Employment Scheme subject to condition that the petitioner should acquire intermediate qualification within a period of three years from the date of joining and the petitioner failed to acquire the requisite qualification within time and basing upon her request the respondents have extended time on 13.06.2013 and 30.06.2014 respectively for period of two years in spite of the same, she could not secure qualification. Respondent No.3 issued notice on 07.03.2015, informing the petitioner that time of fulfilling the conditions is nearing and she shall pass the prescribed test within stipulated time failing which she has to face either termination or reversion to the lower post. Thereafter, issued another notice on 16.03.2015 directing the petitioner to give her willingness for appointment to the lower post as per the appointment 1 2022 11 SCC 392 2 2013 6 SCC 287 6 order dated 27.10.1995. The petitioner submitted representations on 16.03.2015 and 30.03.2015 requesting the respondent to grant further extension and the said application was forwarded to the Government. 4.1 Thereafter, petitioner made a representation stating that she acquired B.A. Degree from Dr.B.R.Ambedkar University in April 2015 and requested them to consider the said qualification by enclosing a copy of the Certificate. The respondents after considering the said representation condoned the delay of two months beyond the prescribed period in acquiring the requisite qualifications including technical qualification of Office Automation and regularized her services in the category of Junior Accountant from the date of acquisition of qualifications i.e., 11.12.2015 and the grievance of the petitioner is resolved and no further adjudication is required in this case.
5. Learned counsel for the petitioner by way of reply submits that the petitioner is entitled for regularization of her services from date of her initial appointment i.e., 12.03.2010 as Junior Accountant and not extending the said benefit is contrary to law.7
6. Having considered the rival submissions made by respective parties and upon perusal of the material available on record, it clearly reveals that the petitioner was appointed as a Junior Accountant on 12.03.2010 subject to the following conditions:
1. She shall acquire Intermediate qualification within a period of 3 years from the date of joining as Junior Accountant,
2. She should pass any one of the following certificate courses examination conducted by the Board of Technical Education and Training, AP, Hyderabad:
a) Office Automation
d) PC Maintenance and Trouble Shooting
e) Web designing (or) Must hold a degree in Bachelor of Computer Application (BCA) or BSc (Comp) or B.Com (Comp) or B.A. (Comp) or equivalent examination or above, recognized by any University in India established or incorporated by or under Central Act, Provincial Act or a State Act or an Institution recognized by the UGC within a period of (18) months from the date of her joining failing which she shall be discharged from service.
7. The petitioner had accepted the terms and conditions of the above said appointment order and joined in the services and she could not secure the qualification within a stipulated period of three years and basing on her request, respondent No.3 granted one year extension from 15.03.2013 and also granted extension of another year, through proceedings dated 30.06.2014. Even after expiry 8 of five years the petitioner has not acquired the requisite qualification. Pursuant to the conditional appointment order dated 12.03.2010, respondent No.3 issued notice on 07.03.2015 vide Memo No.A1/1234/JD/PPO/2015 informing the petitioner that she has not fulfilled the condition and the time granted by the respondent is going to be expired and further informed that before expiry of the said period she has to secure requisite qualification otherwise she has to face either termination or reversion to the lower post after expiry of time limit i.e., on 14.03.2015. Respondent No.3 had issued memo on 16.03.2015 directing the petitioner to give her willingness for appointing her to the lower post. Respondent No.3 issued the impugned proceedings dated 30.10.2015, discharging her from services as Junior Accountant for not acquiring the requisite qualification as per the conditions made in the appointment order. Questioning the same, petitioner filed O.A.No.6603 of 2015 before APAT, wherein APAT granted interim order dated 07.12.2015 suspending the proceedings dated 30.10.2015 and by virtue of the same the petitioner is continuing in the post of Junior Accountant.
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8. During the pendency of this case, the petitioner acquired the degree qualification from Dr.B.R.Ambedkar University in April/May 2015 and technical qualification of Office Automation test with delay of two months. Basing on the representation made by petitioner, the Government condoned the delay of two months in acquiring technical qualification and basing on her educational qualification, her services were regularized from the date of acquisition of the certificate i.e., 11.12.2015 in the post of Junior Accountant, in pursuance to the orders issued in G.O.Ms.No.151, G.A.(Ser.C) Dept., dated 22.06.2004. Hence the petitioner is estopped to contend that intermediate qualification as well as the technical qualification is not required for the post of Junior Accountant.
9. It is also relevant to mention here that after acquiring B.A. Degree in April 2015 from Dr.B.R. Ambedkar University in Distance mode and technical qualification of Office Automation in September, 2015, the petitioner submitted representation to respondent authorities requesting them to continue her in the same post as Junior Accountant basing on the qualification 10 acquired by her. After considering the representation, respondent No.1 issued G.O.Rt.No.598 (Finance and Planning)Admn.I Dept dated 17.03.2016, G.O.Rt.No.1083, (Finance and Planning)Admn.I Dept., dated 24.07.2017 relaxing the Rule 12 R/w Rule 31 of Rules and ordered for regularization of her service in the category of Junior Accountant from the date of acquisition of qualification i.e.,11.12.2015 and also condoned the gap period from the date of termination to date of reappointment into service to be treated as leave. During the course of hearing learned Assistant Government Pleader, basing on instructions, submitted that the petitioner's services were regularized in the category of Junior Accountant on 05.04.2016 and she got promotion to the post of Senior Accountant on 26.09.2019 and her probation was also declared in the category of Senior Accountant.
10. In Sarva U.P. Gramin Bank v. Manoj Kumar Chak (supra) the Hon'ble Apex Court held that statutory rules governing promotions cannot be substituted by circulars or supplementary guidelines; they can only be supplemented but not replaced. It emphasizes the distinction between eligibility and minimum merit for 11 promotions, with the Departmental Promotion Committee (DPC) responsible for assessing minimum merit, not the management. While misconduct or disciplinary actions can affect eligibility, there must be a clear provision in statutory rules to enforce such exclusions. Circulars or guidelines that conflict with statutory rules are considered invalid. Furthermore, the judgment underscores the principle of seniority in promotions, regardless of the superior performance of junior candidates in written tests, interviews, or performance evaluations. The court rejected appeals against the High Court's decision, affirming these principles.
11. In ESI Corpn. v. Union of India(supra) the Hon'ble Apex Court held that statutory regulations, such as the ESIC Recruitment Regulations of 2015, hold greater legal weight than administrative schemes like DACP when it comes to matters of promotion. The Court emphasized that concessions made by legal counsel do not bind a party in matters of law. Therefore, the DACP scheme cannot be applied if it contradicts statutory law, as established by the ESIC Recruitment Regulations. Furthermore, with regard to the principle of estoppel, the 12 judgment clarified that estoppel does not apply when it conflicts with statutory regulations or law. In other words, even if certain representations or statements were made in the past, if they are in conflict with statutory regulations, they cannot be enforced. The Court upheld the ESIC Recruitment Regulations of 2015 as the prevailing standard for promotions and rejected the application of the DACP scheme, providing clear legal guidance on the matter.
12. In case on hand, the petitioner accepted the conditions mentioned in appointment order, thereafter at the request of the petitioner the respondents have extended the time period for acquiring the required qualifications as mentioned in the appointment order. When the petitioner failed to obtain the requisite qualification, respondent No.3 issued the impugned proceedings dated 30.10.2015, discharging her from services. During the pendency of this case, petitioner acquired degree from Dr. B.R. Ambekar Open university and basing the same, respondents regularized the services of the petitioner. In view of the same, the petitioner is not entitled to seek relief to consider her services for 13 regularization from the date of initial appointment as petitioner was not qualified at that time of appointment. and is not entitled to contend that the qualification mentioned in the appointment order dated 12.03.2010 are not required for the post of Junior Assistant having been accepted the terms and conditions made therein and after serving at length in the said post. Hence, the judgments, relied by the learned counsel for the petitioner as mentioned above, are not applicable to the facts and circumstances of the case.
13. For the foregoing reasons, this Court does not find any merit in the writ petition to invoke the jurisdiction under Article 226 of Constitution of India and the petitioner is not entitled for regularization of her services in the post of Junior Accountant from the date of initial appointment.
14. Accordingly, the writ petition is dismissed. No costs.
As a sequel, miscellaneous petitions, pending if any, shall stand closed.
_____________________________ JUSTICE J. SREENIVAS RAO 05th October, 2023 PSW