Andhra Pradesh High Court - Amravati
J Rama Krishna, E.G.Dist.,A.P. vs The State Of A.P.,Endowments,Guntur ... on 18 October, 2022
HONOURABLE SMT. JUSTICE V. SUJATHA
Writ Petition No.13962 of 2017
ORDER:
The writ petition is filed under Article 226 of the Constitution of India seeking the following relief:
"to issue a Writ or Order more in the nature of Mandamus in directing the respondents particularly the 4th respondent to prepare a fresh selection list of Senior Assistants of Sri Talupulamma Ammavari Devasthanam, Lova village, Tuni Mandal, East Godavari District showing the petitioner as senior to 5th respondent in the matter of promotion to the next higher category of Superintendents in Sri Talupulamma Ammavari Devasthanam, Lova village, Tuni Mandal, East Godavari District."
The case of the petitioner, in brief, is that he joined as Record Assistant on 01.04.1991 in Sri Talupulamma Ammavari Devasthanam. Thereafter, the petitioner was promoted as Junior Assistant on 25.05.2003 and subsequently promoted as Senior Assistant on 14.10.2011 in the 4th respondent Devasthanam as he passed all departmental tests. It is the further case of the petitioner that the 5th respondent initially joined as Prasadam 2 VS, J W.P.No.13962 of 2017 Salesman in the Devastanam on consolidated pay on 01.02.1990 and later he joined as Record Assistant on 28.10.1993 and later promoted as Junior Assistant on 25.05.2003. The 5th respondent in pursuance of his passing Accounts Test for Subordinate Service in November, 2011 was promoted as Senior Assistant on 13.11.2011. The main grievance of the petitioner is that the 4th respondent-Assistant Commissioner issued provisional senior list of Senior Assistant of Devastanam vide Memo Rc.No.A1/169/2016, dated 17.04.2016, showing the 5th respondent as Senior to the petitioner and called for objections from the petitioner, pursuant to which, the petitioner submitted his objections on 02.05.2016. But, the 4th respondent, without considering the objections of the petitioner, had issued final seniority list vide Rc.No.A1/117/2016, dated 23.11.2016, holding that the 5th respondent was senior than the petitioner and is eligible to hold the post of Senior Assistant w.e.f. 14.10.2011 instead of 13.11.2011. Aggrieved by the said final seniority list, the petitioner made a representation on 29.11.2016 to 3 VS, J W.P.No.13962 of 2017 the 4th respondent stating that the name of the 5th respondent was wrongly shown at S.No.4 instead of at S.No.5 and requested to rectify the seniority list of Senior Assistants by placing the petitioner at S.No.4 instead of S.No.5 i.e. above the 5th respondent. He also made a representation to the Minister for Endowments, who in turn endorsed the same to the 3rd respondent-Joint Commissioner directing him to enquire into the matter. But, the 3rd respondent vide his letter Rc.No.A1/6571/ 2016, dated 21.01.2017 replied to the Minister for Endowments justifying the said final seniority list of Senior Assistants dated 23.11.2016 prepared by the 4th respondent. Challenging the said seniority list dated 23.11.2016 the present writ petition is filed.
The 4th respondent filed his counter, while denying the allegations made in the writ petition, contended that the petitioner was appointed as Record Assistant on 01.04.1991 and he was promoted as Junior Assistant on 25.05.2003 and as Senior Assistant on 14.10.2011, whereas, the 5th respondent was appointed as Record 4 VS, J W.P.No.13962 of 2017 Assistant on 28.10.1993 and was promoted as Junior Assistant on 25.05.2003 and as Senior Assistant on 14.10.2011 and only after considering the representation made by the 5th respondent and after giving notice to the petitioner, the seniority of 5th respondent was reconsidered by placing him at Sl.No.4 i.e. above the petitioner.
It is the further case of the respondents that the petitioner passed departmental test on 14.10.2011, but, whereas the 5th respondent passed departmental test in the month of November, 2011. As the 5th respondent was eligible and senior to the petitioner and awaiting the results of departmental test, his case was reconsidered and was given promotion on par with the petitioners as Senior Assistant w.e.f. 14.10.2011. Initially, the 5th respondent was promoted on 13.11.2011 and the petitioner was promoted as Senior Assistant on 14.10.2011 by the then Executive Officer, which is not following the rules framed under G.O.Ms.No.888, dated 08.12.2000. It is the Executive Officer, who is competent authority to fix the order of preference among the persons and their seniority if 5 VS, J W.P.No.13962 of 2017 two or more persons are promoted on the same day. As the 5th respondent was senior and pursuant to the representation made by him for re-fixation of his seniority, the Executive Officer had issued proceedings dated 23.11.2016 preparing the final seniority list, after giving show cause notice and after receiving objections from the petitioner, which is neither illegal nor arbitrary. It is further stated that the 5th respondent had passed departmental test in the month of November, 2011, whereas the petitioner was promoted on 14.10.2011 in the vacancy arose after retirement of other Senior Assistant. During the vacancy period, the petitioner had passed departmental test, but the 5th respondent appeared for the departmental test and was awaiting for results. However, the petitioner was promoted by the then Executive Officer. Because of injustice caused to the 5th respondent, he made a representation, pursuant to which the seniority was refixed after giving opportunity to the petitioner for making objections. The contention of the petitioner that the action of the 4th respondent in refixing the seniority list on the 6 VS, J W.P.No.13962 of 2017 representation of the 5th respondent is contrary to Rule 39 cannot be sustained, as the said Rule does not apply to the case of the 5th respondent for the reason that from Rule 36 onwards special provisions are applicable to eight major temples and the 4th respondent temple was not one of them and hence, the writ petition is liable to be dismissed.
The 5th respondent also filed his counter reiterating the contents of the counter of the 4th respondent and stated that the action of the respondents is contrary to Rule 39 as the said Rules are not applicable to the 5th respondent for the reason that from Rule 36 onwards, the special provisions are applicable to eight major temples and the 4th respondent temple is not one of eight major temples, as such, the said ground cannot be sustained.
Heard Sri D.V. Sasidhar, learned counsel for the petitioner, learned Government Pleader for Endowments and the learned standing counsel for the 4th respondent and the learned counsel for the 5th respondent.
7 VS, J W.P.No.13962 of 2017 Learned counsel for the petitioner would submit that in the provisional list of Senior Assistants dated 17.04.2016, the 5th respondent was wrongly shown that he passed departmental test i.e. Account Test for Subordinate Service in the month of November, 2010, consequent upon which, the 5th respondent was treated as eligible and qualified for promotion to the post of Senior Assistant before the date of promotion of the petitioner as Senior Assistant i.e. 14.10.2011 and accordingly, the 5th respondent was shown as senior and placed him above the petitioner in the provisional seniority list. In fact, as on the date of preparing the provisional seniority list, the petitioner was qualified and eligible to be promoted as Senior Assistant as he passed all departmental tests in the year 2007 itself, whereas the 5th respondent was not qualified as on the date when the petitioner is eligible to be promoted i.e. 14.10.2011 though he appeared for the departmental test in the year 2011. However, after declaration of results in the month of November, 2011, the 4th respondent, vide proceedings Rc.No.A1/117/16, dated 8 VS, J W.P.No.13962 of 2017 23.11.2016 issued final seniority list placing the 5th respondent as senior to the petitioner by considering the date of appearing the departmental test, which is wholly illegal, arbitrary and contrary to the Rules and in violation of principles of natural justice. In fact, the 5th respondent was not eligible to be promoted as Senior Assistant as he passed the departmental test on 13.11.2011, as such, giving of promotion to the 5th respondent to the post of Senior Assistant from 14.10.2011 instead of 13.11.2011 with retrospective effect by duly placing the petitioner as junior to him is bad in law and contrary to the Rules. He mainly contended that the date of passing of the examination/departmental test would be the date for the purpose of reckoning the seniority of the employees concerned vis-à-vis the other employees.
In support of his contention, the learned counsel for the petitioner placed reliance on S.P. Badrinath v. Government of A.P. and others1, wherein, the Hon'ble Supreme Court held that promotion dependent upon 1 (2003) 8 SCC 1 9 VS, J W.P.No.13962 of 2017 passing the eligibility test and that the date of passing of the examination would be the date for the purpose of reckoning the seniority of the employees concerned vis-à- vis the other employees.
Similarly, in K. Balarama Raju v. V. Subramanya Sarma and others2, wherein the Hon'ble Supreme Court categorically held that it is settled law that one should have the qualifications on the date when the applications are invited and any such relaxation to permit unqualified candidates cannot be to the prejudice of the qualified candidates and that they can be taken into the service but cannot steal a march over the qualified and the selected candidates.
Likewise, in State of M.P. v. Ramkinkar Gupta and others3, wherein the Hon'ble Supreme Court held that the seniority will be fixed from the date of passing the departmental examination and not from the date of joining of service.
2 (2011) 13 SCC 574 3 (2000) 10 SCC 77 10 VS, J W.P.No.13962 of 2017 Per contra, the learned standing counsel appearing for the 4th respondent, while supporting the final seniority list, vehemently contended that the services of the 5th respondent was regularised in the cadre of Record Assistant w.e.f. 28.10.1993, but, whereas the services of the petitioner were regularized in the cadre of Record Assistant w.e.f. 01.06.1996. He further contends that since the 5th respondent passed departmental test, his seniority was refixed taking into consideration the date of his appearance to the examination as the date for determining the seniority in the cadre of promotional post and there is no illegality in reckoning the inter se seniority between the petitioner and the 5th respondent.
As stated in the judgments referred to supra, it is settled law that the date of passing of examination would be the date for the purpose of reckoning the seniority of the employees concerned. It is also settled law that one should have the qualification to become eligible for promotion and any such relaxation to permit unqualified candidates cannot be to the prejudice of the qualified candidates.
11 VS, J W.P.No.13962 of 2017 In the light of above settled law, on perusal of final seniority list, it appears that the petitioner passed departmental test in 2007 much prior to the 5th respondent, whereas the 5th respondent passed departmental test in the month of 2011, much later to the petitioner. It also appears from the material on record that pursuant to the representation made by the 5th respondent after passing the department test, his seniority was re-fixed taking into consideration the date of appearing the departmental test as the date for fixing the seniority. As seen from the proceedings in Rc.No.A1/117/16, dated 23.11.2016 whereby the final seniority list was issued, the service particulars of both the petitioner as well as the 5 th respondent are furnished, which may be relevant to refer the said details in order to resolve the issue involved herein, which are as under:
12 VS, J W.P.No.13962 of 2017 Sri A. Babu Rao Sri J. Rama Krishna (5th respondent) (Petitioner) Date of Pay Scale sanctioned in Record 28.10.1993 01.06.1996 Assistant Cadre Educational Qualifications SSC/1987 and year of passing SSC/1990 ITI (Instrumental BA/2006 Mechanic)/1989 BA/2005 Date of Departmental Test passed Endowments Act Test 05/2020 05/1994 Endowments Rules Test 09/2000 05/1994 Subordinate Officers Part-I 11/2011 05/2007 Test Executive Officer Test 11/2011 11/2006 Indian Evidence Act Test 11/2011 10/2010 Civil Judicial Test 11/2011 07/2011 A perusal of the above particulars makes it clear that the petitioner has passed departmental test in May, 2007, whereas the 5th respondent passed the said departmental test in November, 2011. As seen from the final seniority list, it appears that as the 5th respondent passed departmental test i.e. Account Test for Subordinate Officers, the date of appearance was considered for promotion. Such a stand taken by the 4th respondent is not 13 VS, J W.P.No.13962 of 2017 sustainable in the eye of law and the same cannot be accepted.
Admittedly, at the time of eligibility for promotion as Senior Assistant, the 5th respondent has not possessed the requisite qualification of passing departmental test, but, only appeared for the said examination, which cannot be considered to be treated as being qualified for promotion. Whereas the petitioner has already passed such departmental test i.e. in the month of May, 2007 and was eligible as on the date of promotion as Senior Assistant.
In that view of the matter, since it is settled law that the date of passing of examination would be the date for the purpose of reckoning the seniority of the employees, and keeping in view the fact that at the time of attaining the eligibility for promotion as Senior Assistant, the petitioner was eligible as he passed all the departmental tests way back in the year 2007 itself, but, however, the 5th respondent though appeared for the departmental test was awaiting for results at the time of promotion i.e. 14 VS, J W.P.No.13962 of 2017 14.10.2011 as Senior Assistant, which, admittedly, cannot be a ground to effect promotion with retrospective effect and the same is not sustainable in law.
Accordingly, the writ petition is allowed by setting aside the impugned seniority list in Rc.No.A/117/16, dated 23.11.2016 and thereby directing the 4th respondent to revise the seniority list in the light of the above observations. The said exercise shall be completed within a period of six (6) weeks from the date of receipt of a copy of the order.
As a sequel thereto, miscellaneous petitions, if any, shall stand closed.
________________ V. SUJATHA, J Date: 18.10.2022 Ksn