Andhra HC (Pre-Telangana)
K. Chandrasekhar vs Jawaharlal Nehru Technological ... on 26 February, 1996
Equivalent citations: 1996(2)ALT370
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER B.S. Raikote, J.
1. This writ petition is filed for a writ of mandamus directing respondent No. 1 to promote the petitioner as Special Category Stenographer in the pay scale of Rs. 1330 - 2630 with all consequential benefits, by treating him as person holding the substantial post of U.D. Stenographer. This Court while issuing notice, passed an interim order directing the Respondent No. 1 not to fill up the post of the Special Category Stenographer pending further orders on the writ petition, vide orders in W.P.M.P. No. 1962 of 1989. The respondent-University filed a vacate stay petition in W.P.M.P.No. 2143 of 1989 stating that one C. Janakirama Raju has already been appointed as Special Category Stenographer. Therefore interim order has become infructuous, and this Court vide order dated 29-11-1989 vacated the interim order granted on 4-7-1989. Thereafter, the petitioner has filed W.P.M.P.No. 20172 of 1995 for amendment of the writ petition praying to quash the order in G.O.Ms.No. 156, dated 25-6-1987 and other proceedings in Rc.C5/1301/89, dated 25-5-1989. He has also filed W.P.M.P. No. 19800 of 1995 for impleading respondent No. 2. Both the W.P.M.Ps. have been allowed. As a result, prayer of the petitioner as on today is to direct the respondent No. 1 to appoint the petitioner as Special Category Stenographer and to quash the order of the Respondent No. 1 appointing Respondent No. 2 as Special Category Stenographer.
2. The learned Counsel for the petitioner strenuously contended that the petitioner was working as U.D. Stenographer and Respondent No. 2 was also working as U.D. Stenographer and respondent No. 2 was junior to him. He submitted that the petitioner was a direct recruite to the post of U.D. Stenographer attached to the Vice-Chancellor Peshi in the respondent-University on 8-10-1980 and his probation was declared having satisfactorily completed on 28-10-1981. Even in the order, dated 14-5-1987, he was shown as senior to respondent No. 2 as on 28-10-1981 on the date he completed his probation. As things stood that way, respondent No. 2 was promoted from the lower category to the U.D. Stenographer on 31-10-1983 and his probation was declared on 31-10-1984. Having regard to these facts, the petitioner's Counsel submitted that admittedly respondent No. 2 was junior to the petitioner in the post of U.D. Stenographer. Meanwhile, respondent No. 2 filed an application for his conversion to the post of Senior Assistant with the pay scale of Rs. 1100-2050. That conversion was ordered on 31-3-1987. At that point of time, the petitioner has also filed one application for his conversion from the post of U.D. Stenographer to the post of Senior Assistant on 8-10-1988 and vide order dated 4-1-1989, he was also allowed to convert himself to the post of Senior Assistant. The order reads as under:
"The appointment of Sri Chandrasekhar as Senior Assistant on conversion is purely temporary and he is liable to be reverted to his original post at any time without notice and without assigning any reasons for such reversion".
Meanwhile, Respondent No. 2 sought re-conversion to the post of U.D. Stenographer vide his application, dated 9-1-1989 and he was allowed to be re-converted vide order dated 11-1-1989, but with effect from 26-10-1988. After his re-conversion, the post has been upgraded as Special Category Stenographer and the respondent No. 2 has been promoted as Special Category Stenographer vide proceedings dated 25-5-1989 with effect from 7-4-1989. The petitioner has also applied for re-conversion to his original post of U.D. Stenographer on 18-8-1989, but the same was not considered, even as on the date of filing of the writ petition. In these circumstances, the petitioner filed this writ petition.
3. The main contention of the petitioner is that respondent No. 2 was junior to him and his conversion from the post of Senior Assistant to the post of U.D. Stenographer has been ordered only to oblige him and further he has been promoted to the post of Special Category Stenographer with higher pay-scale, without considering the case of the petitioner. Hence, the impugned proceedings in promoting respondent No. 2 as Special Category Stenographer and in not considering the representation made by the petitioner for re-conversion to the post of U.D. Stenographer and the non-consideration of his case for the promotion to the Special Category Stenographer, is violative of Articles 14 and 16 of the Constitution of India.
4. On the other hand, the learned Counsel for Respondents No. 1 and 2 strenuously supported the impugned proceedings. The learned Counsel for respondent No. 1 University urged that there-conversion of respondent No. 2 was ordered in the exigency of the case and the petitioner's case was not ordered because, the petitioner sought re-conversion subsequent to respondent No. 2. Since the services of the petitioner were required in the post of Senior Assistant Post, his re-conversion has not been considered and the respondent No. 2 was only person available in the post of U.D. Stenographer as on the date, the post was upgraded as the Special Category Stenographer. Therefore, he was promoted. He further contended that it is the privilege of the Vice-Chancellor of the University either to promote or not to promote any person and the petitioner has no right to be promoted to the post of Special Catecographer. The same effect, also is the argument of the Counsel for respondent No. 2.
5. I have considered very anxiously the rival contentions urged by the Counsel. The learned Counsel for respondent No. 1 University and also the learned Counsel for respondent No. 2 have not disputed the fact that respondent No. 2 was junior to the petitioner in the cadre of U.D. Stenographer. From the facts narrated above/ it is clear that the petitioner was appointed as U.D. Stenographer on 8-10-1980 and his probation was declared having completed satisfactorily on 28-10-1981, much earlier to the promotion of the respondent No. 2, as U.D. Stenographer, on 31-3-1983. Thereafter, respondent No. 2's probation was declared having satisfactorily completed on 31-3-1984. From these facts, it is clear that in the cadre of U.D. Stenographer, petitioner was senior to respondent No. 2. As I have stated above, this position is not disputed by the respondents also.
6. Perhaps finding that there was no promotional opportunity in the post of U.D. Stenographer, both the petitioner and respondent No. 2 have sought for re-conversion to the post of Senior Assistant. The learned Counsel for the respondent No. 1 University has admitted that the post of U.D. Stenographer in the office of the Vice-Chancellor and the post of Senior Assistant in the other office are equivalent posts. Respondent No. 2, persumably, having come to know the proceedings of the Government dated 26-5-1987, by which one of the two posts of the U.D. Stenographers attached to the Heads of Departments, has been upgraded. As the post of Special Category Stenographer in the pay-scale of Rs. 1330 - 2630, sought for re-conversion to the post of U.D. Stenographer by his representation dated 9-1-1989 and the same has been ordered and he has been permitted for re-conversion to the post of U.D. Stenographer vide order, dated 11-1-1989 with effect from 26-10-1988. It is relevant to note the proceedings of the Government,, dated 25-6-1987 vide G.O.Ms.No. 156, by which one of the two posts of U.D. Stenographers, attached to the Heads of Departments, was upgraded to the post of Special Category Stenographer in the pay-scale of Rs. 1330 - 2630. The relevant part of the order may be extracted as below:
"The posts of Senior Stenographers attached to Heads of Departments shall be upgraded to that of Special Category Stenographers in the scale of Rs. 1330-2630 provided the cad re strength of Senior Stenographers of the office of the Heads of Departments is more than one and provided there is no post of Special Category Stenographers in the cadre strength of the office of the Heads of Departments.
(i) Proposals for such upgradation will have to be processed by the concerned administrative Departments and sanction obtained for upgradation of the post specifically from the Government.
(ii) Proposals for such upgradation can be considered only where the incumbents possess the qualifications and conditions as prescribed in the Andhra Pradesh Ministerial Service Rules are fulfilled for the post of Special Category Stenographers.
(iii) The fixation of pay of the holders on upgradation shall be under F.R, 22 (B)".
In pursuance of this order of the Government, the respondent No. 1 University has upgraded one post of U.D. Stenographer to the post of Special Category Stenographer in the pay scale of Rs. 1330 - 2630 with effect from 7-4-1989 (i.e., from the date the Government has approved the proposals of the respondent No. 1 University. Since by that time, respondent No. 2 was allowed to be reconverted to the post of U.D. Stenographer, by the impugned G.O, dt. 25-5-1989 he has been promoted to the post of Special Category Stenographer, with effect from 7-4-1989. The fact remains that the application filed by the petitioner on 18-1-1989 for re-conversion, was not ordered. The result is that the said application is kept pending. In these circumstances, the contention of the petitioner in this writ petition that the non-consideration of his application for re-conversion and consequentially not promoting him to the post of Special Category Stenographer as against respondent No. 2, who was very much junior to him, is discriminatory, has all the force.
7. From the nature of the order of conversion issued to the petitioner on 4-9-1989, it is clear that the petitioner was allowed to be covered to the post of Senior Assistant only on temporary basis. The order further made it clear that, the petitioner was liable to be reverted back to the original post of U.D. Stenographer, at any time, without notice and with out assigning any reason for such re-conversion. When I asked the learned Counsel for the respondent No. 1 University whether the petitioner continues to hold lien on the post of U.D. Stenographer even after his conversion to the post of Senior Assistant, he admits that the petitioner holds lien in the post of U.D. Stenographer. From this position, it is clear that the petitioner's substantive post is that of U.D. Stenographer and his conversion to the post of Senior Assistant was purely temporary. If this is so, by refusing re-conversion of the petitioner to the post of U.D. Stenographer, the petitioner is being denied promotion as Special Category Stenographer. When the petitioner is admittedly senior to the respondent No. 2, he was entitled to be promoted as Special Category Stenographer as against respondent No. 2, who is very much junior to him. It is an admitted fact that the petitioner's application for re-conversion was made on 18-1-1989 very much earlier to the promotion of respondent No. 2 on 25-5-1989. In the case of respondent No. 2, his representation for re-conversion was filed on 8-1-1989 and he was permitted for such re-conversion for the post of U.D. Stenographer on 11-1-1989, hardly within 10 days, whereas the application filed by the petitioner on 18-1-1989 for re-conversion to the post of U.D. Stenographer has not been considered even as on today. In these circumstances, it is clear that the fundamental right guaranteed to the petitioner under Article 14 is being violated by the action of the respondent No. 1 University. When respondent No. 2 was junior to the petitioner in the post of U.D. Stenographer, he could not have been promoted to the post of Special Category Stenographer without considering the case of the petitioner and without giving him any opportunity. When the petitioner is senior to respondent No. 2, there is always legitimate expectancy that he would be promoted firt as against respondent No. 2 to the next cadre.
8. Viewed from any angle, it is clear that the impugned order dated 25-5-1989 passed by the respondent No. 1 University vide proceedings in Rc.C5/1301/89 in promoting respondent No. 2 from the post of U.D, Stenographer to the post of Special Category Stenographer with effect from 7-4-1989 was illegal, discriminatory and violative of Articles 14 and 16 of the Constitution of India and the same is liable to he set aside.
9. The other contention of the learned Counsel for the petitioner is that respondent No. 2 was favoured with the order, dated 25-5-1989 only to oblige him, has not been substantiated. May be that respondent No. 2 was aware of the proceedings of the Government dated 25-6-1987, by which one of the posts of U.D. Stenographers attached to the Heads of Departments, was upgraded, to the post of Special Category Stenographer. The petitioner also when he came to know about the same, made a representation for re-conversion from the post of Senior Assistant to the post of U.D. Stenographer. Though mala fides is neither alleged nor proved in this case, yet one thing is certain that the petitioner has been discriminated in not promoting him to the post of Special Category Stenographer by refusing to consider his representation for re-conversion to the post of U.D. Stenographer over which he holds substantialline. The explanation now offered by respondent No. 1 University in the counter that exigency so required not to permit the petitioner, for such re-conversion, is clearly an afterthought. The further contention of the learned Counsel for the respondent No. 1 that it is the privilege of the Vice Chancellor either to promote or not to promote any person to the post of Special Category Stenographer cannot be accepted. What all the powers and privileges the Officers have, are all subject to the fundamental rights guaranteed to the citizens under Articles 14 and 16 of the constitution of India. Therefore, the Vice Chancellor is not entitled to exercise his powers against the fundamental rights guaranteed. Hence, this contention also is rejected.
10. The post of the Special Category Stenographer is a promotional post to the post of U.D. Stenographer. The eligibility as provided by the G.O.Ms. No. l56, dt. 25-6-1987 is that such person to be promoted to the Special Category Stenographer must have to fulfil the qualifications and conditions prescribed in the Andhra Pradesh Ministerial Service Rules. The learned Counsel for the respondent- University brought to my notice that the Rule has been amended and five years experience condition has been modified and reduced to three years. It is not in dispute that by the time the Special Category Stenographer post was created, both the petitioner and respondent No. 2 were eligible, since both had more than 3 years experience. Amongst petitioner and respondent No. 2, the petitioner was admittedly senior to respondent No. 2, accepting that both of them had fulfilled the eligibility rule prescribed by G.O. Ms. No. 156, dated 25-6-1987. When things stood at that, it was the petitioner who was eligible to be promoted to the post of Special Category Stenographer as against the respondent No. 2 since he was senior to him. It is also not disputed that both the petitioner and respondent No. 2 were eligible as per the Rule. The only defence of the respondent No. 1 University is that since respondent No. 2 was available as on the date of upgradation, he has been promoted as against the petitioner. But, it has already come on record that much prior to the upgradation of the post of Special Category Stenographer, the petitioner had made a representation for re-conversion, but the same has been kept in cold-storage without considering it. Thus, the petitioner is denied the opportunity of being promoted to the post of Special Category Stenographer. If the petitioner' case were to be considered for re-conversion to the post of U.D. Stenographer, as requested by him," which was very much prior to the upgradation and promotion of respondent No. 2, the petitioner also would have been "available for promotion to the post of Special Category Stenographer. Therefore, the action of the respondent No. 1 University in promoting respondent No. 2 from U.D. Stenographer to the Special Category Stenographer as against the petitioner, who was senior to him, was arbitrary, discriminatory and violative of Article 14 and 16 of the Constitution of India.
11. Viewed from any angle, I am of the opinion that the petitioner is entitled to succeed in the writ petition. The judgment of the High Court of Karnataka reported in Sampath Kumar v. Cen. Provident Fund Commr. and Anr., 1983 (1) SLR 667 supports the case of the petitioner. In that case also, it was held that in the course of upgradation of a post, person who was senior, has to be considered as against other person who is junior to him. In Munshi Lal Verma v. Union of India, 1984 (3) SLR 498, the Supreme Court also was considering similar question held that when a post was upgraded, if a person in the department was qualified as on the date of the upgradation, he was entitled to the benefit of the order of pugradation. As on the date of upgradation, the petitioner was qualified and he was eligible and he was senior to respondent No. 2. Therefore, he was eligible to be promoted to the upgraded post of Special Category Stenographer. In view of this position of law, I am of the opinion that the petitioner is denied the fundamental rights guaranteed under Article 14 and 16 of the Constitution of India.
12. Having regard to these circumstances, I quash the impugned order passed by the respondent No. 1 University vide Proceedings in Cr.C5/1301/89, dated 25-5-1989. I further direct the respondent No. 1 University to immediately order for re-conversion of the petitioner to the post of U.D. Stenographer as per his request, dated 18-1 -1989. Since the seniority and eligibility of the petitioner in U.D. Stenographer cadre is not disputed in this case, I direct the respondent No. 1 University to promote the petitioner to the post of Special Category Stenographer with effect from his junior-respondent No. 2 was promoted i.e., with effect from 7-4-1989, with all consequential benefits. Compliance in three months from date of receipt of his order.
13. Accordingly, the writ petition is allowed, but in the circumstances, without costs.