Telangana High Court
Sri.S.R.Suresh Babu vs The State Of Telangna And 2 Others on 28 June, 2023
THE HONOURABLE SRI JUSTICE K.SARATH
WRIT PETITION No.31749 of 2022
ORDER:
Heard, Learned Counsel appearing for the petitioner and the Learned Assistant Government Pleader for Services- II appearing for the respondent No.1 and Sri G Arun Kumar, the Learned Standing Counsel appearing for the respondent Nos.2 and 3.
2. Learned Counsel for the petitioner submits that the petitioner is questioning the action of the respondents rejecting the request of the petitioner for promotion to the post of Senior Secretarial Assistant in speaking orders vide Rc.No.HR2/2011/8093/966 dated 04.03.2022. The petitioner was appointed as Record Assistant in the respondent No.2 institution on 22.12.1987 and promoted as Secretarial Assistant on 24.09.1992. As on date of promotion to the Secretarial Assistant, the educational qualification for the said post is Intermediate only and the petitioner has acquired the qualification of Type Writing Lower on 10.03.2004 and also qualified in Accounts Test Page No.2 of 10 SK, J W.P.No.31749 of 2022 Part-I and Part-II. Thereafter, the respondent-Institution has amended the Ministerial Service Rules in the standing order No.6 on 21.11.1994, as per the said rules, the required qualification for the post of Senior Secretarial Assistant promotion from the post of Secretarial Assistant is Bachelor's Degree from any recognized University prescribed for Direct Recruitment and Appointment by Transfer. The petitioner was appointed as Secretarial Assistant before issuance of standing orders No.6 dated 21.11.1994 and the said Standing Order not applicable to the petitioner and the respondents cannot stop the promotion of the petitioner to the post of Senior Secretarial Assistant.
3. Learned Counsel for the petitioner further submits that the Respondent-Institute has relaxed the conditions and qualifications of Bachelor's Degree as per the standing order No.6 of the institute and allowed the promotions from the post of Secretarial Assistants to the post of Senior Secretarial Assistants for some of the candidates, who have not acquired the Bachelor's Degree qualification and the same benefit was not extended to the petitioner herein. In view of the said Page No.3 of 10 SK, J W.P.No.31749 of 2022 action of the respondents, the petitioner is continuing without any promotion from 24.09.1992. The other staff members namely G.Sudharshan, J.Umesh Kumar and L.Mahanthi were given promotions on conditional basis and they were allowed to continue as Senior Secretarial Assistant. The respondent institution being a public authority cannot entertain the people on pick and choose method for promotions and the action of the respondents for not providing promotion to the petitioner by not treating him on par with, who were promoted as Senior Secretarial Assistant after relaxation of rules is illegal and arbitrary.
4. Learned Counsel for the petitioner further submits that on an earlier occasion, the petitioner approached this Court and filed W.P.No.45 of 2020 and this Court disposed of the same and as per directions of this Court, the respondents passed impugned rejection orders through Rc.No.HR2/2011 /8093/966 dated 04.03.2022 on the ground that the petitioner does not having the Degree qualification, but the respondents have considered the other similar situated persons. The respondents have rejected the petitioner's case Page No.4 of 10 SK, J W.P.No.31749 of 2022 without taking into account of the earlier instructions, where they have promoted other persons to the post of Senior Secretarial Assistants without any qualifications and the respondents have to consider the case of the petitioner on par with the similar situated persons and the said action is arbitrary, illegal and requested to allow the writ petition.
5. Learned Counsel for the petitioner relied on a judgment of the Hon'ble Supreme Court in The State of Jammu and Kashmir Vs Randhir Singh1.
6. The Learned Standing Counsel for the respondents submits that the petitioner does not possess the Bachelor's Degree qualification which is mandatory for the promotion to the post of Senior Secretarial Assistant as per the standing orders No.6 dated 21.11.1994. The names mentioned by the petitioner in the writ affidavit cannot be taken into account as all of them acquired Degree qualification. Mr L.Mahanthy acquired Degree qualification and got promotion as the 1(Unreported judgment of Supreme Court of India in C.A.No.5203 of 2022 dated 08.08.2022).
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SK, J W.P.No.31749 of 2022 Senior Secretarial Assistant. Mr G.Sudharsan and Mr J.Umesh Kumar are belongs to SC category and do not possess the Degree qualification, but both of them posses the Typewriting English Higher qualification. Subsequently, Mr G.Sudharshan retired from service and Mr J.Umesh Kumar acquired the Degree qualification and the petitioner is in the state of not possessing the Degree qualification and no merits in the writ petition for inference of this Court and requested to dismiss the Writ Petition.
7. The Learned Standing Counsel appearing for the respondents relied upon the judgment of the Hon'ble Supreme Court in State of Uttar Pradesh Vs Vikas Kumar Singh2 and State of Himachal Pradesh Vs Raj Kumar3.
8. After hearing the both sides, this Court is of the opinion that the petitioner is working as Secretarial Assistant in Respondent-Institution from 24.09.1992 and having Intermediate qualification. The Ministerial Service Rules were amended in standing orders No.6 of the Respondent- 2 (2022) 1 SCC 347 3 (2023) 3 SCC 773 Page No.6 of 10 SK, J W.P.No.31749 of 2022 Institute on 21.11.1994 and the qualification which was prescribed for the post of Senior Secretarial Assistant is Bachelor's Degree from any recognized University for Direct Recruitment and Appointment by Transfer. The case of the petitioner is that the petitioner is not having the qualification of Graduation. On contra, number of candidates without qualification of Graduation promoted as Senior Secretarial Assistants. But, the case of the petitioner was rejected by the respondents and passed impugned orders wherein it is stated that the candidates who have not acquired the qualification of graduation are belongs to Scheduled Castes and one of them subsequently acquired the qualification of graduation but the petitioner herein is not having the Degree qualification as on this date.
9. The Judgment relied by the Learned Counsel for the petitioner in The State of Jammu and Kashmir Vs Randhir Singh (supra 1) not apply to the instant case and the relevant portion of the judgment is as follows:
"The respondent was a diploma holder and was appointed way back in 1967. As a result of the Rules, Page No.7 of 10 SK, J W.P.No.31749 of 2022 which were incorporated in the year 1973, the respondent was not afforded the benefit of promotion on the ground that he was not a degree holder. However, the challenge was raised by the respondent for the first time by filing SWP No. 1707 of 1997, which was disposed of on 04 . 04.2001 as observed by the Division Bench. The respondent reached the age of superannuation in the year around 2000.
In the circumstances, in our considered view, the ends of justice would met if we direct -
(a) the respondent shall be deemed to have been promoted to the level of Dairy Engineer and shall be reckoned to have retired as Dairy Engineer on reaching the age of Superannuation."
In the instant case, the petitioner not questioned the amended rules in any point of time, moreover, the petitioner not made any representations for consideration of his case till the year, 2019.
10. The Judgment relied by the Learned Standing Counsel for the respondents in State of Uttar Pradesh Vs Vikas Kumar Singh (supra 2) passed by the Hon'ble Supreme Court, apply to the instant case and the relevant portion of the judgment is as follows:
"Therefore, the relaxation may be at the discretion of the competent authority. The relaxation cannot be prayed Page No.8 of 10 SK, J W.P.No.31749 of 2022 as a matter of right. If a conscious decision is taken not to grant the relaxation, merely because the Rule permits relaxation, no writ of mandamus can be issued directing the competent authority to grant relaxation in qualifying service. Therefore, the High Court has committed a grave error in issuing the writ of mandamus the commanding the competent authority to grant relaxation in the qualifying service. Consequently, the High Court has also erred in quashing and setting aside the eligibility lists dated 18-3-2019 and 10-5-2019, which as such were prepared absolutely in consonance with the 1990 and 2006 Rules. The impugned judgments and orders passed by the learned Single Judge as well as the Division Bench of the High Court are not sustainable in law."
11. The Hon'ble Supreme court in State of Himachal Pradesh Vs Raj Kumar (supra 3) held as follows:
"82.2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existing rules, which implies the "rule in force" as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates.
82.3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered or promotion in accordance with the repealed rules in view of the policy decision taken by the Government. There is no Page No.9 of 10 SK, J W.P.No.31749 of 2022 obligation for the Government to make appointments as per the old Rules in the event of restructuring of the cadre is intended for efficient working of the unit.49 The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14."
12. In the instant case, the petitioner is not qualified as per the rules and also not questioned the promotion of similarly situated persons, after lapse of more than a decade he made a representation to the respondents and now after disposing of the representation, he filed writ petition questioning the said orders seeking on par with others with effect from 01.06.1990 and the request of the petitioner cannot be considered.
13. The Hon'ble Supreme Court in State of Himachal Pradesh Vs Raj Kumar (supra 3) held that "A candidate has the right to be considered in the light of registering rules which implies the force as on the date when the consideration takes place and the right to be considered for promotion occurs on the date of consideration of the eligible candidates". Admittedly, the petitioner is not having the Page No.10 of 10 SK, J W.P.No.31749 of 2022 qualification of Bachelor's Degree as on this date. The rules were amended in the year, 1994 and the petitioner is aware of the promotions of similarly situated candidates in the year, 2008 and kept quiet for more than 11 years and made representation to the respondents at belated stage in the year, 2019 and the respondents have rightly rejected the case of the petitioner for promotion to the post of Senior Secretarial Assistant and passed impugned speaking orders.
14. In view of the same, this Court is not inclined to interfere with the rejection orders passed by the respondents. The present Writ Petition is devoid of merits and accordingly dismissed. However, there shall be no order as to costs.
15. As a sequel, miscellaneous petitions pending, if any, shall also stand closed.
_____________________ JUSTICE K.SARATH Date: 28.06.2023 spk