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2020 DIGILAW 810 (AP)

P. Jaya Dev v. State of Andhra Pradesh

2020-12-14

C.PRAVEEN KUMAR, D.RAMESH

body2020
ORDER : D. Ramesh, J. 1. Heard Sri S.V. Indira, counsel for petitioner and learned Government Pleader for Services-II appearing for respondents. 2. This petition is filed under Article 226 of the Constitution of India to declare the Speaking Orders passed by the 6th respondent in Memo No. 18334/CS/2020, dated 04.03.2020, in rejecting the case of the petitioner for promotion as Deputy Executive Engineer [PH] in treating the petitioner as new entrant to the State of Andhra Pradesh from 10.07.2018, without reckoning the length of service as Assistant Executive Engineer [PH] from 26.06.2013 till 09.07.2018 also as qualifying service for promotion to the post of Deputy Executive Engineer [PH] as arbitrary, illegal, discriminatory, malafide and unconstitutional violation of articles 14, 16, 16(4) and 21 of the Constitution of India. 3. The petitioner initially appointed as Assistant Executive Engineer in Zone-IV on 26.06.2013 issued by the 6th respondent, in erstwhile State of Andhra Pradesh posting at PH Sub-Division, Mancherial, Adilabad District. Later his service was regularised with effect from 05.07.2013 and probation was also declared by orders dated 25.07.2015. Admittedly, while working as Assistant Executive Engineer, even after enacting Act 6 of 2014, i.e. bifurcation of State into Telangana and the sate of Andhra Pradesh, the authorities have issued the said orders, regularising the services of the petitioner by declaring the probation. Subsequent to the bifurcation, the authorities have also issued instructions and guidelines for repatriation of local cadre employees to their native state as such the petitioner claims to be allotted to the state of Andhra Pradesh. 4. But subsequent to the bifurcation of the State, the allotment process of local cadre employees was taken by respective GAD Department in pursuance of A.P. Reorganization Act, 2014. In fact as per Section 77(2) of Act 2014, employees of local, district, zonal and multi zonal cadres, who fall entirely in one of successor State shall be deemed to be allotted to successor State, the same is applicable to the petitioner. But in view of the representation made by many employees/spouses, working in either States, Government permitted inter-state transfers framing guidelines, while effecting such transfers, without considering basic ingredients laid down in the Act. But in view of the representation made by many employees/spouses, working in either States, Government permitted inter-state transfers framing guidelines, while effecting such transfers, without considering basic ingredients laid down in the Act. Even though the petitioner belongs to the State of Andhra Pradesh, the authorities failed to allot him to his native State as prescribed under the Act, hence, the petitioner compelled to file a representation requesting to allot him to the State of Andhra Pradesh, in terms of the Act. Accordingly, the Government issued G.O. Ms. No. 73 dated 16.02.2018, allotting the petitioner to the State of Andhra Pradesh. The petitioner has joined as Assistant Executive Engineer Public Health/AEE PH on 10.07.2018 Kurnool District, Zone-IV, the same was ratified on 16.07.2018 by the Government, treating the petitioner as employee of Andhra Pradesh as AEE PH from 10.07.2018. 5. In fact, the 6th respondent has issued provisional seniority list dated 25.02.2017 and further final seniority list of Assistant Executive Engineers, Zone IV of PHC/ME, by proceedings No. 2288/SEN/AEEs/AEs/2016, issued on 15.06.2017 placing the name of the petitioner at Serial No. 6, as per the marks obtained in APPSC Notification 2013. But without considering the above seniority list, the 6th respondent has issued final seniority list of Assistant Executive Engineer [PH] by proceedings dated 03.09.2019, without including the name of the petitioner in the seniority list. In view of the above, the petitioner made a representation on 19.09.2019 to include his name in the final seniority list of Assistant Executive Engineer in Zone IV and fix his seniority at appropriate place in terms of the guidelines laid down in memo No. 9940/SPE&MC/2015 dated 07.08.2017 and consider his case for promotion to the post of Deputy Executive Engineer [PH] taking into account 6 years of service in the feeder category post of Assistant Executive Engineer in Zone-IV to fulfil adequacy of SC/ST candidates taking his length of service in terms of Rule 33(a) of A.P. State and Subordinate Service Rules. 6. The contention of the petitioner is that as per the criteria prescribed in G.O. Ms. 6. The contention of the petitioner is that as per the criteria prescribed in G.O. Ms. No. 452 MA & UD Department dated 20.06.2007 for promotion to the post of Deputy Executive Engineer, one should hold Degree in Civil/Mechanical Engineering from any university or its equivalent with three years of service in the feeder category, therefore, as per the said rule, the petitioner is fully qualified to promote to the post of Deputy Executive Engineer PH, as the petitioner fulfilled the said condition of including 3 years of qualifying service in the feeder category as Assistant Executive Engineer PH. The petitioner is only SC candidate in Zone-IV, therefore, he is fully eligible and qualified for promotion to the post of Deputy Executive Engineer. Despite the requests and representation made by the petitioner, the authorities have not considered the case of the petitioner for promotion, hence, the petitioner left with no option, filed W.P. No. 18334 of 2019 before this Court, raising various grounds. 7. The said Writ Petition was disposed of at the stage of admission with the following directions: "According to the learned counsel for petitioner, no action has been taken on the said representation, dated 18.09.2019 (acknowledged by the office of the 5th respondent on 19.09.2019). Since the representation said to have been made by the petitioner, is pending consideration before the 5th respondent, without going into the merits of the case, this Court deems it appropriate to dispose of the Writ Petition with a direction to the 5th respondent to pass appropriate orders/take appropriate action strictly in accordance with law, on the representation, dated 18.09.2019 made by the petitioner, within a period of two (2) months, from the date of receipt of a copy of this Order." 8. In view of the above direction, the respondents disposed of the representation, without considering the same in prospective manner, by rejecting the case of the petitioner issued impugned speaking orders, through memo No. 1834/CS/2020 dated 04.03.2020, on the following grounds:- "It is informed that in the Rule-33(a) of A.P. State and Subordinate Service Rules, it was mentioned as follows: "The seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as a punishment be determined by the date of his first appointment to such service, class, category or grade". In this connection, it is informed that, the individual has joined in the state of Andhra Pradesh as Assistant Executive Engineer on 10-07-2018 FN as per his request on inter-state transfer from the state of Telangana. In this connection, it is informed that, in the Rule-35(b) of A.P. State and Subordinate Service Rules, it was mentioned as follows regarding the above subject: "The seniority of a member of service, class or category, who is transferred on his own request from one unit of appointment to another unit of appointment, shall be fixed with reference to the date of his joining duty in the later unit of appointment." It is informed that, the transfer of Sri P. Jaya Dev, Assistant Executive Engineer from the state of Telangana to the State of Andhra Pradesh was made as per his request and as per the joint guidelines issued by the two successor states. It is further informed that, the Government vide Memo No. 996193/C1/2019, dated 04-11-2019 have issued clarification on this issue and clarified that, Sri P. Jaya Dev, Assistant Executive Engineer was joined in the successor state of Andhra Pradesh on inter-state transfer in the year 2018 form the state of Telangana as per his request and hence, it is very clear that, the individual is junior to the Direct Recruitment Assistant Executive Engineers, who were appointed and joined in the Department thorough APPSC in the year 2017 in the state of Andhra Pradesh. Further, the government have requested the Department to take necessary action as per the promotional rules existed in the Department. In this Connection, it is informed that as per the Deputy Executive Engineer promotional rules issued by the government vide G.O. Ms. No. 452 MA dated 20.06.2007, a person soul have completed 3 years of service in the cadre of Assistant Executive Engineer. Accordingly, the seniority of the individual is to be counted w.e.f. 10.07.2018 in the cadre of Assistant Executive Engineer i.e. from the date of joining as Assistant Executive Engineer in the state of Andhra Pradesh on transfer as per the joint guidelines issued by the state of Andhra Pradesh and Telangana vide Government circular Memo No. 9940/SPF&MC/2015, dated 07.08.2017. Accordingly, the seniority of the individual is to be counted w.e.f. 10.07.2018 in the cadre of Assistant Executive Engineer i.e. from the date of joining as Assistant Executive Engineer in the state of Andhra Pradesh on transfer as per the joint guidelines issued by the state of Andhra Pradesh and Telangana vide Government circular Memo No. 9940/SPF&MC/2015, dated 07.08.2017. the individual has completed 1½ year of service as Assistant Executive Engineer in the sate of Andhra Pradesh after his joining and accordingly he is not eligible for promotion to the post of Deputy Executive Engineer as he has not completed minimum 3 years of physical service in the cadre of Assistant Executive Engineer in the state of Andhra Pradesh after his transfer/joining in the new state. Further it is informed that there are no rules to consider the case of the individual for promotion to the post of Deputy Executive Engineer without having minimum service in the cadre of Assistant Executive Engineer after joining in the state of Andhra Pradesh on interstate transfer". 9. Assailing the said orders, the present Writ Petition is filed. 10. Learned counsel appearing for the petitioner has mainly contended that the view taken by the respondents in memo, dated 04.03.2020, rejecting the case of the petitioner by holding that the petitioner is not having 3 years of experience as per the G.O. Ms. 452 MA, dated 20.06.2007 is totally bad and irrational. Even though the petitioner belongs to the state of Andhra Pradesh, without considering properly, he was allotted to the state of Telangana, but considering the request he was re-allotted to the State of Andhra Pradesh. In view of the above re-allotment, and in view of Rule 35(b) of State of Andhra Pradesh Subordinate Service Rules, rejecting the case of the petitioner is totally bad and the same is due to non-application of mind. 11. Learned Government Pleader for Services-II filed counter on behalf of 6th respondent extracting the reasons mentioned in the memo, and specifically contended that as per the Deputy Executive Engineer promotional rules issued by the Government vide G.O. Ms. No. 452 MA & UD Department, dated 20.06.2007, a person should have completed 3 years of service in the cadre of Assistant Executive Engineer. No. 452 MA & UD Department, dated 20.06.2007, a person should have completed 3 years of service in the cadre of Assistant Executive Engineer. Accordingly, the seniority of the petitioner is to be counted with effect from 10.07.2018 in the cadre of Assistant Executive Engineer i.e. from the date of joining as Assistant Executive Engineer in the state of Andhra Pradesh on request transfer as per the joint guidelines issued by the State of Andhra Pradesh and Telangana vide Government Circular memo No. 9940/SPF&MC/2015, dated 07.08.2017. The petitioner has completed 2 years of service as Assistant Executive Engineer in the State of Andhra Pradesh after his joining and accordingly he is not eligible for promotion to the post of Deputy Executive Engineer as he has not completed minimum 3 years of physical service in the cadre of Assistant Executive Engineer in the State of Andhra Pradesh, after his transfer/joining in the new state. Further submits that there are no rules to consider the case of the petitioner for promotion to the post of Deputy Executive Engineer without having minimum service in the cadre of Assistant Executive Engineer after joining in the state of Andhra Pradesh on inter-state transfer. Hence, pleads to dismiss the Writ Petition as the petitioner is not having requisite qualification as per the special rules. 12. On the other hand, learned counsel for the petitioner would contend that the stand taken by the 6th respondent is contrary to the ratio decided by the Honourable Apex Court in various judgments. In fact the same was brought to the notice of the authorities, but they have not considered properly and rejected the case of the petitioner solely on the ground that he is not entitled to, as per the Section 35(b) of A.P. State Subordinate Service Rules. 13. To support his contention, learned counsel appearing for the petitioner, has relied on the judgment Union of India Vs. C.N. Ponnappan 1996 (1) SCC 524 , the issue that fell for consideration in the said judgment is whether an employee, who is transferred from one unit to other, on compassionate grounds, and as a result, is placed at the bottom of the seniority list can have his service in the earlier unit from where he has been transferred counted as experience for the purpose of promotion in the unit where he is transferred. The Honourable Apex Court held- "[4] The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retrial benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade has to be taken into account as part of his experience for the propose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred.." 14. Further relied on the judgment reported in Union of India Vs. V.N. Bhat 2003 (8) SCC 714 , wherein the Honourable Apex Court held that- "The question which, therefore, arises for consideration is as to whether the period of service rendered by the respondent in the Ministry of Defence should be wiped off for all purposes? The well settled principle of law that even in the case where the transfer has been allowed on request, the concerned employee merely loses his seniority but the same by itself would not lead to a conclusion that he should be deprived of the other benefits including his experience and eligibility for promotion.... "(17) On the facts of the present case and especially in view of the aforesaid decisions, we are of the view that when the transfer is in public interest and not in request, the two employees transferred cannot be in worse position than those in the above rulings who have been transferred on request and who in those cases accepted that their names could appear at the bottom of the senior list. Even in cases relating to request transfers this Court has held, as seen above, that the past service will count for eligibility for certain purposes tough it may not count for seniority." 15. Even in cases relating to request transfers this Court has held, as seen above, that the past service will count for eligibility for certain purposes tough it may not count for seniority." 15. Rule 35 (b) of A.P. State Subordinate Rules deals with seniority of a member of a service, who is transferred on his own request from one unit of appointment to another unit of appointment shall be fixed with reference to the date of his joining duty in the latter unit of appointment. However, it does not mean that they should waive the total experience in the previous unit, and the respondents have misconstrued that seniority and the experience. It is not in dispute that the petitioner has joined in service as Assistant Executive Engineer on 26.06.2013 and his services were regularised and probation was declared by proceedings, dated 24.07.2015 by the 6th respondent even after bifurcation of the state. In view of the above, at any rate his service for eligibility has to be reckoned from the date of his initial appointment i.e. 26.06.2013. 16. In the above said decisions relied by the petitioner, identical questions came up for consideration and constantly from 1996 onwards the Hon'ble Supreme Court has been categorically holding that in request transfer, the employee may lose his seniority but the experience gained should not be wiped out and he cannot be deprived of his benefit including his experience and eligibility for promotion. 17. In view of the above discussion and in view of the ratio laid down by the Honourable Apex Court in the above said judgments, the Writ Petition is disposed of, setting aside the impugned order, Memo No. 18334/CS/2020, dated 04.03.2020 passed by the 6th respondent and directing the respondents to consider the case of the petitioner for promotion to the post of Deputy Executive Engineer [PH], if otherwise entitled to, but not for seniority, by considering the experience gained from the date of initial appointment, for eligibility, as per G.O. Ms. No. 452 MA & UD Department, dated 20.06.2007. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.