Andhra Pradesh High Court - Amravati
B Srinu Babu vs Ap Transco on 2 November, 2022
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No.28275 OF 2021
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of India, initially challenging the action of the respondents in not considering the last date of examination as the criteria for conversion of the Additional Assistant Engineer (AAE) post to Assistant Engineer (AE) as was done in the case of several persons and to direct the respondents to take last date of examination of B.Tech as the criteria for the conversion of Additional Assistant Engineer post to Assistant Engineer post instead of the issue of provisional certificate of the B.Tech course or in the alternative to cancel the conversion orders issued by the Additional Assistant Engineer and treat the petitioners as Additional Assistant Engineer and entitled for all the benefits flowing out of such cancellation. Subsequently, the writ petitioners filed I.A.No.1 of 2022 seeking amendment of the prayer, which is extracted hereunder:
"To issue an appropriate Order, Direction or Writ more particularly one in the nature of Writ of Mandamus, to declare the action of the 2nd 2 Respondent in issuing proceedings vide Memo No.CGM (HR)/DS (Per)/AS (HR)/PO (Reg)/197/12, dated 12.11.2021 is illegal, arbitrary and unjust and consequently direct the respondents to consider the last date of examination of B.Tech as criteria for the conversion of AAE post to AE post instead of issue of provisional certificate of the B.Tech Course or alternatively to cancel the conversion orders issued and treat the petitioners as AAE by extending all the benefits including seniority and pass such other orders or orders."
2. The case of the petitioners in the present Writ Petition is that they were initially appointed as Additional Assistant Engineers (AAE) during the year 2009 and they have attended B.Tech (EEE) examination and the last date of examination of the 1st petitioner is 16.08.2010 and the 2nd petitioner had written the last examination on 09.03.2011 in the B.Tech course. The 1st petitioner obtained provisional certificate on 12.07.2012 and the 2nd petitioner on 06.08.2011 respectively. On obtaining the said certificates, the petitioners herein made a representation to the 1st respondent for conversion from the post from AAE to AE. Basing upon the said representation, the 3 respondents herein have converted the petitioners from the post of AAE to AE, vide memo dated 10.02.2014, from the date of issuance of the provisional certificate i.e., 13.0.2011 and 09.03.2011 respectively of both the petitioners. Aggrieved by the same, the present Writ Petition came to be filed on the ground that in the case of several persons, the respondents have taken last date of the examination as the criteria for conversion from the post of AAE to AE and in the case of the present writ petitioners, the respondents have taken the date of issuance of the provisional certificate for conversion of the post from AAE to AE, for which action of the respondents, vide the impugned memo dated 12.11.2021, the petitioners herein will be deprive of the seniority/salaries (for more than 11 months) and other service benefits as Assistant Engineers and thereby, the petitioners herein prayed this Court to direct the respondents to consider the last date of examination as the criteria for the conversion of the post from AAE to AE post instead of issuance of provisional certificate of B.Tech course or alternative to cancel the conversion orders issued and treat the petitioners as AAEs by extending all benefits including seniority. 4
3. Per contra, learned counsel for the respondents would submit that at the request of the petitioners and as per the procedure contemplated under the Rules and Regulations of the Andhra Pradesh State Electricity Board (APSEB) and by relying on the Regulation 33(1) of the APSEB Rules and on giving willingness of the petitioners to forego their seniority in the cadre of AAE by counting 50% of regular service rendered as AAEs to avail the benefits of conversion in accordance with B.P.Ms.No.596 dated 06.06.1978, amendment regulation was issued under APSEB Service Regulations Part-III (6)(B) Note-2 for the purpose of fixation of seniority in the cadre of Assistant Engineers. Accordingly, the conversion orders have been issued to the petitioners. Regulation 33(1) of the APSEB Regulations Part-I is extracted hereunder for the convenience, which is applicable to determine the services for the purpose of increment with following conditions:
"I. In cases where the passing of an examination or test confers on a board employee the right to any benefit or concession, such titles should be deemed to have accrued on the day of following the last day of examination or test which he passed.5
II. The aforesaid ruling is only for the purpose of increment sanction, the scope cannot be widened out for the context or matters related to conversion, seniority, promotion, etc."
4. In order to clarify the ambiguity prevailed in the term 'date of acquisition of degree' the respondents have also issued Memo No.DP/DM.I/647-D27, dated 05.02.1992 and clarified that the date on which the provisional certificate was issued shall be the basis for considering such cases for promotion to the next higher cadre. The relevant paragraph of the Memo dated 05.02.1992 is extracted as follows:
"After careful consideration of the issue, it is clarified that the date on which provisional certificate was issued by the university shall be taken as the date on which he deemed to have obtained the Degree. The date on which provisional certificate was issued shall be basis for considering such cases for promotion to the next higher cadre."
5. After considering the application of the petitioners for conversion, the respondents have issued orders, vide Memo 6 dated 22.03.2012 and 11.02.2014 respectively, with effect from the date of provisional certificate, i.e., on 12.07.2011 of the 1 st petitioner and on 06.08.2011 of the 2nd petitioner respectively, relying on the Regulation 33(1) of the APSEB Regulations and in terms of the Memo No.DP/DM.I/647-D27 dated 05.02.1992. Learned counsel for the respondents would submit that the conversion was made basing upon their own volition and the probation orders were issued with effect from 12.07.2012 in the cadre of AEE. In view of the above stated memo and regulations, at this juncture, the request of the petitioners for cancellation of conversion orders cannot be accepted and that there are no precedents cases for considering for cancellation of such conversion and as per Regulation 40 of the APSEB Regulations Part-II, as adopted by APTRANSCO, any person may, in writing, relinquish any right or privilege to which he may be entitled under these Regulations, if, in the opinion of the appointing authority, such relinquishment is not opposed to the interest of the administration and nothing contained in these Regulations shall be deemed to require the recognition of any right or privilege to the extent to which it has been so relinquished. 7 Their conversion was made basing upon the memo dated 05.02.1992, which has been clearly explained in the Rule 33 Part-III(6)(B) of the APSEB Rules. Hence, prayed to vacate the interim order dated 05.07.2022 passed in I.A.No.3 of 2022 in W.P.No.28275 of 2021 and, consequently, prayed to dismiss the Writ Petition.
6. This Court, vide order dated 05.07.2022 in I.A.No.3 of 2022, has directed the respondents to reserve two posts in the cadre of DEE (Electrical).
7. In the light of the pleadings available on record and the contentions advanced by the learned counsel for both sides, the point for consideration of this Court is, whether the petitioners can seek a direction from this Court to cancel the conversion, which was given by the respondents for the post of Assistant Engineer from the post of Additional Executive Engineer, contrary to the consent?
8. The writ petitioners were converted at their request and had accepted the condition to forego the seniority in the post of AAE. Now the petitioners cannot file the present Writ Petition 8 for claiming original seniority. Once an employee voluntarily had foregone the seniority in the original post for the purpose of getting fixation of seniority in the category of Assistant Engineer and such an employee cannot turn around and claim seniority with reference to the original appointment as Additional Assistant Engineer, non-consideration of the writ petitioners cannot be construed as an illegality, as the writ petitioners themselves had foregone their seniority in the cadre of Additional Executive Engineer. At the request and option of the petitioners, they had foregone their seniority in the post of Assistant Engineer and they cannot claim to re-fix their seniority as Additional Assistant Engineers and the petitioners cannot contend that the impugned memo is being arbitrary and illegal. Exercising such an option was the choice of the writ petitioners. Hence, the action of the respondents in not considering case of the writ petitioners for conversion from the last date of examination, i.e., B.Tech/B.E., and considering their conversion from the date of obtaining provisional certificate cannot be said that the principles of natural justice are being violated in view of the Regulation 33(1) and the Memo dated 05.02.1991, which 9 explicitly indicates that the date of examination is from the date of provisional certificate. In view of the same and for the foregoing reasons, this Court is of the opinion that there are no reasons to direct the respondents to cancel the conversion, which is impugned in the present Writ Petition, as the conversion of the writ petitioners was made at their own request and now the writ petitioners cannot pray to cancel the conversion and consider their case to claim seniority in the post of Additional Assistant Engineer. Seniority has taken place long back prior to 10 years and the same cannot be re-drawn the seniority list after lapse of more than 10 years.
9. For the foregoing reasons, this Writ Petition is dismissed. There shall be no order as to costs of the Writ Petition. As a sequel, interlocutory applications pending, if any, in this Writ Petition shall stand closed.
10. In view of the law laid down by the Hon'ble Apex Court in the cases of Raksha Manthri v. V.M.Joseph1, A.P.State Electricity Board v. R.Parthasarathi2 and Renu Mallick v. Union of 1 (1998) 5 SCC 305 2 (1998) 9 SCC 425 10 India3, if an employee is transferred at his/her own request, from one post to another post, the period of services rendered by such employee, at the earlier place where he/she held a permanent post and had acquired permanent status, cannot be excluded from considering for determining the eligibility of such employee for promotion, though he/she may have been placed at the bottom of the seniority list in the converted post. The respondents are directed to consider the case of the petitioners for promotion in view of the above judgments as per their eligibility.
________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 02.11.2022 siva 3 (1994) 1 SCC 373 11 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO WRIT PETITION No.28275 OF 2021 Date: 02.11.2022 siva