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2012 DIGILAW 390 (AP)

J. Ramachandraiah v. Govt. of A. P.

2012-04-04

B.CHANDRA KUMAR

body2012
Judgment : The petitioner, in this writ petition seeks a Writ of Mandamus declaring the Proceedings in Memo.No.101771/Endts.III/A1/92-3 dt. 31.03.1994 confirming the orders of the second respondents in his Proceedings Roc.No.B2/17411/84 dated 23.01.1992 as illegal and arbitrary and consequently to direct the respondents to fix his seniority over and above respondents 3 and 4 in the cadre of Deputy Executive Engineer (Electrical) and also Divisional Engineer (Electrical) and give all the benefits of pay, allowances, promotion etc. 2. The petitioner’s brief case is that he passed L.E.E. Diploma in the year 1964 from S.V.Polytechnic, Tirupathi, and that he was selected for the post of Supervisor (Electrical) in the second respondent Devasthanams in the year 1968 and he was ranking first in the order of merit. Then, he passed B.Tech., (Electrical) Examination from S.V. University, Tirupati in the year 1978. He was declared as approved probationer in the cadre of Supervisor (Electrical) and was also confirmed in the post of Supervisor (Electrical) with effect from 01.04.1970. 3. A vacancy for the post of Assistant Engineer (Electrical), which is now re-designated as Deputy Executive Engineer fell vacant in the year 1978. Then the second respondent Devasthanam, by resolution No.5432 dated 17.11.1978 prepared and selected a panel of 2 names, namely, K.Peera Reddy and the petitioner as Assistant Engineer (Electrical). At that time, the name of one Hara Gopala Sharma, whose name was at Sl.No.2 in the list, was not considered. Subsequently, said K.Peera Reddy was promoted as Assistant Engineer (Electrical). When K.Peera Reddy went on leave, the petitioner was promoted as Assistant Engineer (Electrical). However, when K.Peera Reddy joined the service, the petitioner was reverted for want of vacancy. 4. As the matter stood thus, in the year 1983, two vacancies for the post of Assistant Engineer, which is now re-designated as Deputy Executive Engineer, arose. Then the second respondent Devasthanams, by memo in Roc No.TLI/28976/80 dated 23.08.1982 communicated tentative seniority list showing the respondents 3 and 4 as seniors to the petitioner. Then the petitioner filed objections and in spite of objections and representations of the petitioner, the respondents appointed the third and the fourth respondents are Deputy Executive Engineer (Electrical) even before confirming the final seniority, by order dated 30.01.1984. Then the second respondent confirmed the tentative seniority list by order dated 17.07.1984. Then the petitioner was also promoted as Deputy Executive Engineer (Electrical) by proceedings dated 01.02.1984. Then the second respondent confirmed the tentative seniority list by order dated 17.07.1984. Then the petitioner was also promoted as Deputy Executive Engineer (Electrical) by proceedings dated 01.02.1984. Challenging the action of the second respondent in promoting respondents 3 and 4 by placing them above him in the seniority list, the petitioner preferred an appeal before the second respondent and the said appeal was dismissed by order dated 23.01.1992. Aggrieved by the same, the petitioner again preferred appeal before the first respondent, but however, the first respondent also rejected the appeal by order dated 31.03.1994. 5. The main submission of Sri A.V.Sivaiah, learned counsel for the petitioner is that admittedly when a vacancy arose, the petitioner was promoted as Deputy Executive Engineer, but while preparing the seniority list, respondents 1 and 2 have illegally promoted respondents 3 and 4 before the petitioner was promoted by placing them above the petitioner in the seniority list. 6. Per contra, Sri A.K.Jayaprakash Rao, learned standing counsel for the second respondent Devasthanams submitted that since respondents 3 and 4 obtained B.Tech (Electrical) degree prior to the petitioner, they were promoted before the petitioner and thus, there is no illegality in the impugned order. 7. In reply, the learned counsel for the petitioner submitted that the contentions of the learned counsel for the second respondent Devasthanams and the counter filed by him in this writ petition cannot be taken into consideration under Rule 12 of the Writ Proceedings Rules, 1977 since the counter was not filed within six months from the date of service of Rule Nisi. It is also submitted that the order passed by the second and the first respondents in the appeals preferred by the petitioner are not supported by any reasons and, therefore, the impugned proceedings are liable to be set aside. 8. The points that arise for consideration in this writ petition are (1) Whether the counter filed by the respondents can be taken into consideration; and (2) Whether the orders passed by the first and the second respondent authorities in the appeals preferred by the petitioner are supported by reasoning and sustainable. 9. 8. The points that arise for consideration in this writ petition are (1) Whether the counter filed by the respondents can be taken into consideration; and (2) Whether the orders passed by the first and the second respondent authorities in the appeals preferred by the petitioner are supported by reasoning and sustainable. 9. Rule 12 of the Writ Proceedings Rules, 1977 reads as follows:- “12 (i) (a) Every Respondent in every Writ Petition intending to enter appearance and oppose any Writ Petition on which notice is issued by the High Court, shall enter appearance and file a Counter Affidavit in opposition as soon as may be and in any event not later than six months from the date of service of notice in the Writ Petition or the Service of Rule nisi on the said Respondent “unless otherwise directed by the court”. (b) Reply affidavits shall be filed unless otherwise ordered, within one month of receipt of copy of the Counter Affidavit. (ii) No Counter affidavit filed beyond six months from the date of service of notice on the opposite party or parties in the Writ Petition shall be received or be used at the hearing of the Writ Petition unless the Court permits the Respondent on an application containing special reasons to do so. (iii) Affidavits in opposition and affidavits in reply thereto shall be filed in the Registry along with authenticated copies of documents on which the party relies duly stitched book-wise and indexed after service on the opposite party or parties. No such affidavit shall be entertained after the time extended in sub-rule (ii) without the leave of the Court. 10. Thus, it is clear from sub rule (iii) of the above extracted Rule that affidavits in opposition and affidavits in reply thereto shall be filed in the Registry along with authenticated copies of documents on which the party relies after service of the opposite parties within six months from the date of service of Rule Nisi. 11. It is not in dispute that said Rule Nisi is mandatory. In the instant case, Rule Nisi was ordered on 14.08.1996. The Vakalat on behalf of the second respondent was filed on 20.02.1997. It appears that counter was served on the other side on 02.03.2009. Therefore, it appears that the above referred Rule 12 of the Writ Proceedings rules, 1977, has been violated. In the instant case, Rule Nisi was ordered on 14.08.1996. The Vakalat on behalf of the second respondent was filed on 20.02.1997. It appears that counter was served on the other side on 02.03.2009. Therefore, it appears that the above referred Rule 12 of the Writ Proceedings rules, 1977, has been violated. In view of the same, I hold that the counter filed by the respondent No.2 cannot be taken into consideration. 12. The proceedings vide Memo No.101771/Endts.III/A1/92-3 dated 31.03.1994 is as follows:- GOVERNMENT OF ANDHRA PRADESH REVENUE (ENDTS.III) DEPARTMENT Memo No.101771/Endts.III/A1/92-3 Dated: 31.03.1994 Sub:-T.T.D.s – Appeals – Appeal Petition filed by Sri J.Ramachandraiah, Deputy Executive Engineer, T.T.D.s, U/s. 120(ii) of the Act 30/87 – regarding. Ref:-1. From Sri J.Ramachandraiah, Dy. Executive Engineer, T.T.D.s. Appeal Petition dated 22.04.1992. 2. Govt. Memo No.101772/Endts. III/A1/92-1, dt.22.12.92 3. From the E.O., T.T.D. Lr.No.B2/1932/93 dated 13.10.1993. * * * Government have carefully examined the Appeal Petition filed by Sri J.Ramachandraiah, Deputy Executive Engineer, Tirumala Tirupati Devasthanams first cited with reference to the report of the Executive Officer, Tirumala Tirupati Devasthanams and connected records and they see no reason to modify the orders of the E.O., TTD issued in proceedings No.B2/17411/84 dated 23.01.1992. Accordingly, the appeal petition filed by Sri J.Ramachandraiah, Dy. Executive Engineer, T.T.Ds, is hereby rejected. V.S.Shankararao Deputy Secretary to Government 13. The operative portion of the proceedings in Roc.No.B2/17411/84 dated 23.01.1992 is as follows:- “The Board of Trustees, T.T.D. heard the appellant, perused the connected records and after careful examination, rejected the appeal vide its Resolution No.757 dated 20.01.1992. An appeal lies to the Government under Section 120(ii) of the Act 30/87 within 90 days of the receipt of this order. 14. The above referred two proceedings make it clear that no reasons have been assigned therein for rejecting the case of the petitioner. Thus, it appears that there is no application of mind. When the first and the second respondents have not assigned any reasons for rejecting the case of the petitioner, the points raised by Sri A.K.Jayaprakash Rao, learned standing counsel for the second respondent Devasthanams at this stage, without supported by any pleadings, cannot be taken into consideration. It is not in dispute that the petitioner was promoted as Assistant Engineer (Electrical) when leave vacancy arose and at that time, his name was shown above the names of respondents 3 and 4. It is not in dispute that the petitioner was promoted as Assistant Engineer (Electrical) when leave vacancy arose and at that time, his name was shown above the names of respondents 3 and 4. It is also not in dispute that when the tentative seniority list was communicated, the petitioner raised objection and the final seniority was confirmed on 17.07.1984, but however, the respondents 3 and 4 were promoted as Deputy Executive Engineer (Electrical) on 30.01.1984, i.e., even before confirming the tentative seniority list. 15. In view of the above, the impugned order cannot sustain and is liable to be set aside. Accordingly, the Writ Petition is allowed as prayed for by setting aside the impugned order. However, since it appears that the petitioner has already retired from service, the respondents may pass orders fixing the seniority of the petitioner over and above respondents 3 and 4 in the cadre of Deputy Executive Engineer (Electrical) and Divisional Engineer (Electrical) notionally and grant him all the benefits, pay and allowances, promotion etc. There shall be no order as to costs.