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2010 DIGILAW 208 (AP)

K. Balakrishna v. B. Jagadish Kumar

2010-03-15

GHULAM MOHAMMED, NOOTY RAMAMOHANA RAO

body2010
JUDGMENT : ( Per Hon’ble Sri Justice Ghulam Mohammed) 1. This Writ Petition is filed questioning the legality and validity of the order dated 19.10.2009 passed in O.A.No. 7521 of 2009 by the Andhra Pradesh Administrative Tribunal. 2. The first respondent herein approached the A.P. Administrative Tribunal by way of filing O.A.No. 7521 of 2009 challenging the action of the Engineer-in-Chief, third respondent herein, in allotting him to Zone-VI from Zone-V and depriving his right to promotion to the post of Deputy Executive Engineer as per his turn in the seniority list in the cadre of Assistant Engineers in Zone-V under rule of reservation as illegal, arbitrary and contrary to the Presidential Order and for a consequential direction to consider his case for promotion to the post of Deputy Executive Engineer from Zone-V as per his original zonal allotment by following rule of reservation. 3. The A.P. Administrative Tribunal by order dated 19.10.2009 disposed of the said OA directing to consider the case of the first respondent for promotion to the post of Deputy Executive Engineer in Zone-V without reference to the study certificate, on par with his juniors, pending disposal of the SLP by the Supreme Court as per his seniority, eligibility and suitability within a period of four weeks from the date of receipt of a copy of the order. Hence this Writ Petition. 4. In this Writ Petition, it is the case of the petitioner that he joined service as Draughtsman Grade.III on 27.2.1992 in Irrigation Department of Zone-V unit and achieved promotion as Assistant Engineer in Zone-V with effect from 18.12.1998, which was later antedated to 3.8.1998; that he is the senior most Assistant Engineer, that he belongs to Scheduled Caste community, and that he is eligible for consideration for promotion to the post of Deputy Executive Engineer in Zone-V in one of the vacancies reserved to be filled up by Scheduled Caste candidates. It is the grievance of the petitioner that though he is senior most Assistant Engineer in Zone-V and eligible for promotion, the respondents are resorting to in-charge arrangements to the cadre of Deputy Executive Engineer. 5. Counter affidavit is filed on behalf of the first respondent stating that he was initially appointed as Assistant Engineer on 27.1.1981 in Zone-V and his services were regularized in Zone-V vide G.O.Ms.No. 413, dated 28.8.1983 and his probation was declared w.e.f. 3.12.1983. 5. Counter affidavit is filed on behalf of the first respondent stating that he was initially appointed as Assistant Engineer on 27.1.1981 in Zone-V and his services were regularized in Zone-V vide G.O.Ms.No. 413, dated 28.8.1983 and his probation was declared w.e.f. 3.12.1983. It is stated that he completed twenty eight years of service in Zone-V and he is the senior most Assistant Engineer in SC community. Thereafter, due to exercise undertaken by the Government to review all appointments/postings made in various zones in contravention of the provisions of the Presidential Order, the Department found that the first respondent is a native of Zone-VI and continuing in Zone-V, and therefore, his name was deleted from Zone-V tentative seniority list issued by the second respondent in the cadre of Assistant Engineer and shown in Zone-VI. It is further stated that one Sri R. Ashok Kumar, junior to the first respondent was promoted to the cadre of Deputy Executive Engineer on 29.6.2009 in Zone-V and he is deprived of promotion due to sudden change of Zone. Therefore, he filed the aforesaid OA challenging the action of the Engineer-in-Chief in allotting him to Zone-VI and depriving him of right to promotion to the post of Deputy Executive Engineer. It is further stated that pursuant to the direction of the A.P. Administrative Tribunal, he was treated as a person belonging to Zone-V and considered for promotion to the post of Deputy Executive Engineer in Zone-V and promoted as DEE on Incharge basis by proceedings dated 2.3.2010 and therefore prayed to dismiss the Writ Petition. 6. It is further stated that pursuant to the direction of the A.P. Administrative Tribunal, he was treated as a person belonging to Zone-V and considered for promotion to the post of Deputy Executive Engineer in Zone-V and promoted as DEE on Incharge basis by proceedings dated 2.3.2010 and therefore prayed to dismiss the Writ Petition. 6. It is submitted by Sri G. Mohan Rao, learned Counsel for the petitioner that the petitioner is a proper and necessary party to the OA and therefore the Tribunal ought to have dismissed the OA on the ground of non-joinder of necessary and proper party; that inasmuch as the first respondent is brought into Zone-V pursuant to the decision of the Tribunal, he became senior most Assistant Engineer, due to which, the service conditions of the petitioner were adversely affected; that the first respondent conveniently did not challenge the seniority lists of Zone-V and Zone-VI and in such an event, the petitioner is to be an affected party; that the Tribunal ought not to have given any declaration in favour of the first respondent for promotion to the post of DEE in Zone-V as sought for in OA without there being a challenge to the proceedings treating him as belonging to Zone-VI instead of Zone-V; that inasmuch as the first respondent cannot be adjusted against 30% unreserved vacancies in Zone-V, therefore the respondents rightly treated him as belonging to Zone-VI basing on his local status of Zone-VI. 7. On the other hand, Sri M. Ratna Reddy, learned Counsel appearing for the first respondent submitted that once an individual is allotted to a zone, the same becomes final and the authorities cannot change the allotment of zone and the said principle laid down by the Tribunal in OA.No. 8927 of 1998 in its judgment dated 6.5.2004 has attained finality and therefore, the Tribunal following the same, rightly directed the respondents to consider the case of the petitioner for promotion to the post of DEE in Zone-V. He further submitted that the issue of allotment to Zones based on study certificate was rejected by the High Court in W.P.No. 12826 of 2000 and batch, dated 10.10.200. 8. It is not in dispute that the post of Assistant Engineer is a Zonal post and each zone is an independent unit. 8. It is not in dispute that the post of Assistant Engineer is a Zonal post and each zone is an independent unit. It is equally not in dispute that as per Para 8(2) of the Presidential Order, 70% of the posts are reserved in favour of local candidates and 30% of the posts are to be filled up by open competition of all eligible persons without regard to the local status. It is also not in dispute that both the petitioner and the first respondent belong to SC community. The Tribunal while disposing of O.A.No. 7521 of 2009 filed by the first respondent herein, committed jurisdictional error in not undertaking the exercise in regard to implementation of the Presidential Order in its letter and spirit so as to resolve the lis between the parties. The Tribunal in its order dated 19.10.2009 in the said OA, directed the official respondents to consider the case of the first respondent for promotion to the post of DEE in Zone.V. Admittedly the petitioner is not a party to the said OA proceedings. It appears that the petitioner came to know of the OA proceedings when the official respondents took steps for implementation of the order passed therein. Prima facie, the Tribunal does not appear to have applied its mind in proper perspective lest it would have visualized that such order would affect the employees who are in the race of promotion. That apart, without deciding the issue as to which zone the first respondent belongs to, the Tribunal ought not TO have blindly disposed of the OA with positive direction in favour of the first respondent. As such, the submission of the learned Counsel for the petitioner that the petitioner is a proper and necessary party to the OA filed by the first respondent aptly deserves consideration. 9. It is stated that as the first respondent was found to be a native of Zone-VI and continuing in Zone-V, his name was tentatively deleted from the seniority list of Assistant Engineer in Zone-V by the second respondent and shown in Zone-VI. It is to be seen that the first respondent has not questioned the said deletion of his name from tentative seniority list of Zone-V before any Court of law or any competent authority. Had the first respondent questioned the same at an appropriate time, the things would have been otherwise. It is to be seen that the first respondent has not questioned the said deletion of his name from tentative seniority list of Zone-V before any Court of law or any competent authority. Had the first respondent questioned the same at an appropriate time, the things would have been otherwise. That apart, the first respondent did not question the promotion of his junior by name Sri R. Ashok Kumar to the cadre of DEE on 29.6.2009 in Zone.V. 10. Further, in the aforesaid OA, the first respondent sought for general direction and there is no specific challenge in allotting him to Zone.VI. The relief sought for in the said OA is to declare the action of the third respondent in allotting him to Zone.VI from Zone.V amounts to depriving of his right to promotion to the post of DEE as per seniority in Zone.V under rule of reservation. But, the Tribunal without deciding as to whether the first respondent belongs to Zone.V or Zone.VI, simply disposed of the OA following its earlier decision. 11. As per Para 8(2) of the Presidential Order, 70% of the posts are reserved in favour of local candidates and 30% of the posts are to be filled up by open competition of all eligible persons without regard to the local status. In the counter filed before the Tribunal to the said OA, it was stated that recruitment and promotions made from 6/75 to 31.8.1981 were without zonal basis, and, in respect of direct recruitment, regularization was done in terms of G.O.Ms.Nos. 647 and 413, dated 14.9.1971 and 29.8.1983 respectively and later zonal allotments were made vide Memo dated 31.8.1981. Questioning the same, some of the Assistant Engineers approached the Tribunal and the Tribunal in its judgment dated 16.3.2002 in OA.No. 5212 of 1997 and batch, upheld the action of the official respondents and directed to decide the zones with reference to study certificates. In the counter it was stated that as per the study certificates of the first respondent, his zone was identified and kept his name in the seniority list of AEs of Zone.VI as per Para 7 of G.O.Ms.No. 674, dated 10.10.1970 and necessary speaking orders were also passed vide office Memo dated 3.8.2009 rejecting his request for considering his name in Zone.V for promotion to the post of DEE. From the aforesaid position, it can be said that the first respondent was never allotted to a post in the local cadre of Zone V within 30% as per the Presidential Order. Though the learned Counsel for the first respondent placed reliance on the judgment of a Division Bench of this Court in W.P.No. 12826 of 2000, dated 10.10.2001, the facts of the said case are entirely different to the facts of the case on hand and in our considered view, the said decision is not applicable to the facts of the present case. 12. To sum up, unless and until the issue as to whether the first respondent belongs to Zone.V or Zone.VI is resolved, the controversy between the petitioner and the first respondent as to who is to be considered for promotion to the post of DEE cannot be finalized. In that view of the matter, we deem it appropriate to remand the matter to A.P. Administrative Tribunal to decide the issue as stated supra. Accordingly, the order dated 19.10.2009 in O.A.No. 7521 of 2009 passed by the A.P. Administrative Tribunal is set aside and the matter is remanded to the Tribunal to decide the issue stated supra and dispose of the matter afresh, on merits, after adverting to the pleadings and contentions of both the parties and keeping in view Para 8(2) of the Presidential Order. However, we deem it appropriate that inasmuch as the first respondent was already promoted to the post of DEE on In-charge basis, he shall be continued as such, till the disposal of the OA. We further make it clear that such continuation of the first respondent in the post of DEE shall be subject to result of the OA. The A.P. Administrative Tribunal is directed to dispose of the OA as expeditiously as possible, preferably with in a period of three months from the date of receipt of a copy of this order. 13. The Writ Petition is allowed to the extent indicated above. No order as to costs.