Andhra HC (Pre-Telangana)
State Of A.P. And Anr. vs C. Srinivasulu Reddy on 12 September, 2003
Equivalent citations: 2003(5)ALD697, 2003(6)ALT222
Author: Bilal Nazki
Bench: Bilal Nazki, E. Dharma Rao
JUDGMENT
Bilal Nazki, J
1. This writ petition challenges the order of the A.P. Administrative Tribunal in O.A. No. 2049 of 1999. The O.A. was filed by the respondent herein challenging the Government Memo No. 34094/Ser.II-2, dated 8.4.1999.
2. The case of the respondent before the Tribunal was that he belongs to Zone-III. He was appointed as Physical Director Grade-II with qualifications of B.Com., B.P.Ed. He also acquired M.P.Ed, qualification on 12.4.1984. He was entitled for promotion to the post of Physical Director, Grade-I which arose on 16.7.1988. But the Government did not consider him and Sri S. V. Krishna Reddy was brought on deputation from Zone-IV and he was given the post. Aggrieved by the action of the Government, the respondent filed RP No. 323 of 1986 before the erstwhile Tribunal. The Tribunal by its order dated 28.8.1986 allowed the RP. The Government in G.O. Ms. No. 354, dated 11.5.1990 made it clear that the notional date of promotion can be given whenever it was found that the claim of the member of service for such promotion in due turn was ignored without justification. The respondent contended before the Tribunal that even though he was entitled for notional promotion with effect from 12.4.1984, his claim was rejected by the order impugned before the Tribunal on the ground that no juniors to him had been promoted. Government Memo dated 8.4.1999 which was sought to be quashed by the respondent before the Tribunal reads as under:
"The attention of the Commissioner and Director of School Education is invited to the reference cited and he is informed that the request of Sri C. Srinivasulu Reddy, R.I.P.E. for notional promotion as Grade-I Physical Director from 1985 is rejected since no junior were promoted earlier to him."
3. The writ petitioners filed a counter stating that Sri. S.V. Krishna Reddy who belongs to Zone-IV had been repatriated to Zone-IV and the respondent in this writ petition was promoted as Physical Director, Grade-I. This was done on the basis of the judgment of the Tribunal in RP No. 323 of 1986. In the judgment the Tribunal had directed the writ petitioners to consider the claim of the respondent for promotion. It was considered and the respondent was promoted and Sri S.V. Krishna Reddy was repatriated. The claim of the respondent for notional promotion from the date Sri S.V. Krishna Reddy was appointed, was declined as no juniors had been promoted. The Tribunal allowed the O.A. on the ground that since the respondent was available and was qualified on the date the vacancy occurred, but he was not considered for promotion and, on the other hand, a person was brought on deputation, therefore he was entitled to notional promotion from the date the vacancy became available. Aggrieved of the order of the Tribunal, the Government of A.P. has filed this writ petition.
4. Now the only questions need to be answered in deciding this writ petition as to what is the import of G.O. Ms. No. 354, dated 11.5.1990 and what was the scope of the order of the Tribunal in RP No. 323 of 1986 which has become final. Before going to the G.O. let us have a look at the order of the Tribunal. This is a brief order which reads as under:
"The petitioner is aggrieved by promotion of the 3rd respondent who belongs to Zone-IV to the post of Physical Director in College of Education, Nellore in Zone-III.
2. It is not in dispute that Government had issued instructions in Memo No. 1461/H2/82-4, Education, dated 11.11.1982 to fill up the aforesaid post, if necessary, by bringing a person from Zone-IV. The vacancy as stated in the paragraph 5 (iii) of the R.P. was filled up in Zone-III on 9.2.1985 by giving the promotion to the 3rd respondent. This fact has not been denied in the counter. It is further not in dispute that by 9.2.1985 the petitioner had become qualified to be considered for promotion to the aforesaid post. Position is well settled that on the date of vacancy, all eligible candidates in respect of a particular post should be considered. Therefore the petitioner had acquired a right to be considered in respect of the vacancy that was filled on 9.2.1985. Some attempt has been made to show that the petitioner had not furnished his eligibility qualification. This would not furnish a good defence to the official respondent to ignore his claim. The official respondents are in possession of the necessary service records of the petitioner. It was for them to furnish the necessary particulars to the higher authorities, inviting a decision as to whether the post should not be filled in terms of the instructions dated 11.11.1982 or after taking into consideration of the case of the petitioner for promotion has resulted in great injustice to the petitioner. He is, therefore, entitled to be considered for promotion against this post held by the third respondent immediately. His case should, therefore, be taken up at once within a period of 15 days from the date of receipt of this order and necessary orders should be passed. The representation petition is allowed but there will be no order as to costs."
5. Thereafter the Government passed an order through Regional Joint Director of School Education on 3.9.1987, which reads as under.
"Under Rule 37a(i) of Andhra Pradesh State and Subordinate Service Rules and also in pursuance of the judgment dated 28.8.1986 in R.P.No. 323 of 1986 of the Andhra Pradesh Administrative Tribunal, A.P., Hyderabad Sri C.Srinivasulu Reddy, Physical Director, Grade-II, K.A.C. Government Junior College, Nellore is temporarily promoted as Physical Director, Grade-I and posted in Government Comprehensive College of Education, Nellore, in the existing vacancy.
The promotion now ordered is purely temporary and is liable for termination at any time without assigning any reason or notice.
The Principal, K..A.C. Government Junior College, Nellore, is requested to relieve the incumbent with instructions to join duty in his new station forthwith.
The Principal, Government Comprehensive College of Education, Nellore is requested to admit the incumbent under reference and report the date of his joining."
6. Thereafter the respondent herein made a representation for notional promotion from the date the vacancy became available which was rejected and eventually the order of the Tribunal was passed. Now let us have a look on the G.O. Ms. No. 354, dated 11.5.1990 on which reliance has been placed. This G.O. was passed after the promotion of the respondent as he was promoted in the year 1987 and the G.O. was passed in the year 1990. This G.O. lays down that notional date of promotion should be given whenever it is found that the claim of the member of service for such promotion in due turn was ignored without justification. Then the benefit of notional promotion would be taken into consideration for computing the qualifying length of service in a category prescribed in the relevant rules for promotion to a next higher category and for the purpose of promotion in the promotional category. In the writ petition it has been stated that the post arose on 16.7.1983. There was no qualified candidate to hold the post in Zone-in. The respondent acquired M.P.Ed. qualification only in the year 1984 and had not represented to the Director of School Education through Director of Higher Education. Therefore the post was filled up by getting one Sri S.V. Krishna Reddy from Zone-IV and he was posted as Physical Director, Grade-I in the Government College of Education, Nellore. It is contended that rules have been laid down by G.O. Ms. No. 1196, dated 27.12.1977 for recruitment of the Physical Director, Grade-I. This post has to be filled up from Assistant Physical Director in Degree College and Physical Directors in Junior Colleges and High Schools with the following qualifications,
1. "A Masters Degree in Physical Education with Diploma in Sports Coaching with regard of having represented his University at the inter University level and State in the National Championship.
2. Experience in organizing games and sports (as exemplified in handling of about a half-a-dozen teams in a year in his institution and their participation in University/Inter-College tournaments) and ability to encourage mass participation in games and sports."
7. The respondent herein, on 16.7.1983, was not a qualified candidate to hold the post as he had not acquired Masters Degree in Physical Education. Even in his O.A. filed by the respondent before the Tribunal he had contended that he had acquired Masters Degree in Physical Education in the year 1984. It was not denied by the writ petitioners that Sri S.V. Krishna Reddy was brought as Physical Director, Grade-I when the respondent had acquired the qualifications. The respondent also contended that he made a representation on 12.10.1984 to consider his request for notional promotion as Physical Director, Grade-I, but without considering his representation the writ petitioners filled up the post on 9.2.1985 by deputing Sri S.V. Krishna Reddy from Zone-IV. The contention of the writ petitioners was that the representation had not been made through the Director of School Education. This plea has not even been accepted by the Tribunal in R.P. No. 323 of 1986 and it cannot be accepted even now. We are conscious of the fact that the Government cannot be forced to fill up a post but when once they decided to fill up a post, they have to consider all eligible candidates, that is settled law and for that we need not rely on any precedents. The learned Additional Advocate-General appearing for the writ petitioners submits that since the respondent's grievance was redressed after the order was passed in RP No. 323 of 1986, therefore he had no further grievance. But as we pointed out earlier that the Government has passed a G.O. being G.O. Ms. No. 354, dated 11.5.1990 itself stating therein that where a person's claim for promotion was not considered at the appropriate time, he would be entitled to notional promotion. Therefore, in our view, the Tribunal was not wrong in coming to the conclusion that the benefit of notional promotion in terms of the G.O. Ms. No. 354, dated 11.5.1990 could not be denied to the respondent on the ground that no junior to him had been promoted. Whether a junior was promoted or not is not a consideration at all in terms of the G.O. Ms. No. 354, dated 11.5.1990. The only consideration under this G.O. is that whether a person was not considered at the time he should have been considered for any reason whatsoever. We are further fortified in our view by the judgment of the Supreme Court reported in Sandhya Jain v. Subhash Garg. In this case also a lecturer was not considered for promotion at the relevant point of time, but during the pendency of the litigation he was promoted. The Supreme Court considered the import of the rules applicable in that case and found that the order of promotion during the litigation would not wipe out the right of consideration from an earlier point of time. Since the respondent herein was not considered at the right point of time, which had been held RP No. 323 of 1986 which has become final, therefore, in our view, in terms of G.O. Ms. No. 354, dated 11.5.1990 the respondent was entitled to the benefit of notional promotion.
8. Accordingly we find no merit in this writ petition which is accordingly dismissed.