Andhra HC (Pre-Telangana)
Board Of Intermediate Education, Rep. ... vs P. Lalitha Kumari on 8 August, 1996
Equivalent citations: 1996(4)ALT266
JUDGMENT G. Bikshapathy, J.
1. The Writ Appeal is directed against the orders of the learned single Judge in W.P. No. 11206/90, dated 31-7-1995 allowing the Writ Petition.
2. A few relevant facts are necessary to properly appreciate the issue. The parties as arrayed in the Writ Petition are referred to herein for the purpose of convenience.
3. The petitioner was appointed as Typist on 1-5-1979 in the Board of Intermediate Education, the respondent herein. Her services were regularised with effect from 1-5-1979. The service conditions of subordinate staff are governed by the Statutory Rules, the A.P. Board of Intermediate Education (Subordinate Service) Regulations, 1978 (in short Service Regulations). As regards promotion to higher posts, the same is regulated by Regulation 13. As there were vacancies of Senior Assistants and since the employees possessing the necessary requirements were not available, the petitioner and six others were promoted as Senior Assistants on purely ad hoc basis with effect from 13-7-1982. There was a stipulation in the order that the promotees shall pass the requisite tests within a period of three years. It is the case of the petitioner that she had passed the accounts test by November, 1984. As her services were not regularised while the services of J. Karunakar and M. Radhakrishnamachari were regularised, she had put-forth a grievance for regularisation of her services. However, Her services were regularised with effect from 26-11-1984 instead of 12-7-1982. This gave rise for filing the Writ Petition.
4. It is her principal grievance that the employees who were promoted as Senior Assistants along with her on 12-7-1982 were regularised and no reasons are forthcoming for the discriminatory treatment. The post of U.D.C was redesignated as Senior Assistant. The learned Judge found that the grounds on which the above two employees were regularised were not forthcoming and hence allowed the Writ Petition with a direction to regularise the services as prayed for.
5. Aggrieved by the decision of the learned Judge, the present Writ Appeal is filed by the respondent Intermediate Board.
6. It is the contention of the learned Counsel for the Appellant that under Regulation 13, there is a blanket prohibition to promote the employees unless they pass the requisite test. Since there were no candidates in the cadre of Junior Assistant who had passed the departmental tests, the petitioner and other employees were promoted as Senior Assistant. But, however, the two employees referred to above had passed accounts test even before the promotion. The second test was completed successfully on 26-7-1983. However he submits that they were regularised in the post of Senior Asisstant with effect from 21-11-1982 as per the directions of this Court in W.P. No. 11060/85, dated 10-7-1989. While in case of petitioner, she passed the accounts test on 26-11-1994 and Board Regulation Test is yet to be passed. Therefore, her services were regularised with effect from 26-11-1984 the date when she passed accounts test.
7. For proper comprehension of the case, it is necessary to consider the purport of Regulation 13, which is extracted below:
"Regulations
1. ....
2. ....
3. Constitution:- The Andhra Pradesh Board of Intermediate Education Subordinate Service shall consist of the following categories of employees namely:-
(1) Superintendents (2) Upper Division Clerks/U.D. Cashier/U.D. Store Keeper. (3) Lower Division Clerks (4) Upper Division Stenographers (5) Lower Division Stenographers (5) (a) Librarian (6) Typists (6) (a) Electrician (6)(b) Telephone Operator (7) Record Assistants (8) Roneo Operators (8) (a) Sargeant (9) Drivers (10) Shroffs (11) Attenders (12) Attender-cum Driver (13) Night Watchman.
Reg. 4 to 12 ........
13. Special Tests:- (a).......
(b) The persons who are already holding any of the posts in categories 1 to 6 of Regulation 3 as on the date of issue of these regulations shall pass both the tests within three years from the said date, tailing which their increments shall be stopped without cumulative effect, provided however that such persons shall not be denied promotion during the said period of three years."
As can be seen from the above Regulation, there is bar for promotion unless the tests are passed. But, there is an ameliorating provision to the effect that it is open for the Board to promote the ineligible employees on the condition as and when the eligible candidates shall have been made available on account of passing tests, the ad hoc promotees shall be reverted. Under 13(b) it is contemplated that as on the date of Regulations coming into force the employees who are occupying the posts for which the passing of the test is necessary, they shall pass the same within 3 years failing which the increments will be stopped. We are not concerned with 13(b) as such in this case.
9. The undisputed facts are that J. Karunakar and M. Radhakrishnamachari were appointed on 2-6-1979 as Junior Assistants and were promoted as Senior Assistants on 12-7-82. By the date of promotion they had passed accounts test on 21-11-1982 and 9-5-1982 respectively, but yet to pass the Board Test. They passed the said test on 26-74983. Whereas in the case of petitioner, she did not pass the two tests as on the date of promotion and that she passed the accounts test by 21-11-1982. The contention that the services of the above two employees were regularised with effect from 12-7-1982 as they passed both the tests appears to be misconceived. They passed only one test viz., accounts test by the date of promotion and the other test they could pass on 26-7-1983. Hence, they could not have been regularised earlier to 26-7-1983. To the same effect is the judgment of the learned single Judge. It is the argument of the learned Counsel for the Board, that by virtue of the judgment of the Court in W.P. No. 11060/85 dated 10-7-1989 their services were regularised with effect from 21-11-1982 and not from 12-7-1982, the date of their promotion. We have perused the judgment and find that the challenge was made to the provisional seniority list of Senior Assistants. The contention of the petitioners therein was that they were promoted earlier to unofficial respondents. Though unofficial respondents passed all the tests earlier to the petitioners, they cannot be made seniors to the petitioners. While dealing with the Regulation 11, the learned Judge held that for determining seniority under the Service Regulation, the date of first appointment to the post is the only criteria and it has nothing to do with the passing of the tests under Regulation 13. It was also held that the Regulation did not prescribe the Method of fixation of seniority from the date of acquiring the qualifications and as such fixation of seniority on that basis was contrary to the Regulation. In the instant case, we are concerned only with the regularisation of the service of the petitioner.
10. It is the contention of the learned counsel for the Appellant that the learned single Judge has gravely erred in directing that the date of regularisation of the services of the petitioner should be 12-7-1982, the date on which the petitioner as well as the other candidates were promoted to the post of Senior Assistant. He submits by virtue of this, entire seniority list of the Senior Assistants in the Board would be upset.
11. Therefore, the issue that arises for consideration in this case is whether the Writ Petitioner can be discriminated In matter of Regularisation of service.
12. Regulation 6 stipulates that every person appointed by direct recruitment shall be on a probation for a period of one year of duty within a continuous period of two years. Under Regulation 8 at the end of the period of probation, the appointing authority shall consider probationer's suitability and issue order either declaring the probation or extending the probation period. This extension or termination of probation shall be done within a period of 8 weeks from the date of the expiry of the prescribed or extended period of probation and communicated to the employee. However, if no such order is given within the said period, it shall be deemed that the employee has satisfactorily completed his probation with retrospective effect from the date of the expiration of the prescribed or extended period of probation and formal orders to that effect may be issued by the authority. The Regulations 6 and 8 read thus:
"6. Probation:- (a) Direct Recruitment:-
Every person appointed by direct recruitment shall be on probation for a total period of two years, on duty within a continuous period of three years.
(b) Recruitment by Promotion.--
Every person appointed by promotion shall be on probation for a total period of one year on duty within a continuous period of two years.
8. Declaration or Extension of Probation:-
At the end of the prescribed period of probation, the appointing authority shall consider probationer's suitability and issue an order either declaring the probation to have satisfactorily completed the period of probation or extending the period of probation by not more than six months. At the end of the extended period of probation, an order either terminating the probation and discharging the probationer or declaring him to have satisfactorily completed probation, shall be issued. The appointing authority shall issue the orders as to the satisfactory completion of probation, or extension or terminating probation, or discharge of a probationer within a period of 8 weeks from the date of expiry of the prescribed or extended period of probation and communicated to him. If no such order is given within the said period, the probationer shall subject to the other provisions of these rules, be deemed to have satisfactorily completed his probation with retrospective effect from the date of expiration of the prescribed or extended period of probation as the case may be and formal order to that effect may be issued for the purpose of record."
13. Thus, from the reading of the above, the successful completion of probation is the necessary criteria for regularising the employee. Regulation 11 deals with the fixation of seniority. It states thus:
"Seniority:-
(a) The date of commencement of probation in a category to which a person is appointed shall determine his seniority in that category.
(b) The appointing authority shall specify in the appointment order whether the person appointed shall commence probation and if so, the date of such commencement.
(c) The appointing authority may, in case two or more persons commence probation on the same date, fix the order of seniority amongst them."
Hence the seniority of the employees has to he fixed with reference to the date of commencement of probation. In the instant case, we find that neither the petitioner nor the other employees were put on probation after they had completed the test prescribed under Regulation 13. Even in respect of Sri Karunakar and Chary, their services have been regularised even before they passed the two tests. Thus, it appears that the Board has not followed the correct procedure as laid down under the Regulation for declaration of probation and for consequential fixation of seniority. In this regard, judgment of this Court in J. Karunakar v. Secretary, Board of Intermediate Education, Hyderabad, A.P., W.P.No. 11060/85, dt. l0-7-1969 is referred to by the learned Counsel for the Respondent Board. The said decision arose under the same Regulations. The petitioner therein and the 2nd respondent were not qualified for promotion to the post of Senior Assistant since they did not pass the requisite test. Yet, they were promoted under Regulation 13-A. The 2nd respondent passed the test on 9-5-1982 while the petitioner passed on 21-11-1982. In the order of Senior Assistants, the petitioner stood at S1. No. 57 while the 2nd respondent stood at St. No. 58. The probation of the petitioner and the 2nd respondent were not declared by the date of passing of the Accounts Test. Under those circumstances, the learned Judge held thus:
"Therefore, when the probation has not been declared and they were promoted to the higher post on temporary basis, the order of seniority maintained in the lower cadre should be followed. The order of seniority prepared tentatively at U.D.C. cadre should be given effect to where all the unqualified persons were promoted on the same day. If a junior acquires the qualifications prescribed for the promotion and his services are 30 regularised before the senior acquires the prescribed qualification, then the senior cannot claim seniority over the junior, though he is senior at lower cadre. In cases where before regularisation of services, both the junior and senior acquire the qualifications prescribed, the seniority maintained at the lower cadre shall continue if both of them are promoted on the same day."
14. As already observed by us, the Board did not follow the Regulations while promoting the employees. The Board had chosen to promote Mr. J. Karunakar and Mr. M. Radhakrishnamadiari without fulfilling the criteria laid down under Regulation 13 and their services were also regularised. The petitioner also stands on the same footing. In such circumstances, it would not be fair and reasonable to treat the equals as unequals. Thus, we find the discrimination is writ at large. Therefore, we accordingly hold that the Writ Petitioner is also entitled for the benefit of regularisation on par with Sri J. Karunakar and Sri M. Radhakrishnamachari. This order may not be construed as directing the Board to regularise her services from the date of promotion.
15. Under these circumstances, we are inclined to dispose of the Writ Appeal with a direction that the Board shall fix the date of regularisation of the petitioner on the same lines on which the case of Sri J. Karunakar and Sri M. Radhakrishnamachari are considered. The learned counsel for the Board also submits that the entire issue is under review. But, we are not deciding the inter se seniority or regularisation of the petitioner and other employees. Even if any review is undertaken, the petitioner's case shall be considered on par with that of above employees.
16. The Writ Appeal is disposed of accordingly. No costs.