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2021 DIGILAW 199 (AP)

K. Srinivas Reddy v. State of Andhra Pradesh

2021-03-24

M.SATYANARAYANA MURTHY

body2021
ORDER : 1. This writ petition is filed under Article 226 of the Constitution of India, challenging the proceedings in RC.No.A1/3474/2016 dated 20.07.2018, ignoring the seniority of the petitioner and promoting the fourth respondent and failure to implement the orders of the second respondent to promote this petitioner on par with the fourth respondent and to declare the same as illegal and arbitrary. 2. The petitioner while working as Record Assistant in Sri Bheemalingeswara Swamy Temple, Narasaraopet, was asked to work in Sri Madveeranjaneya Sametha Sri Kodanda Rama Swamy Temple (for short ‘Sri Anjaneyaswamy Temple’), Seethanagaram, Tadepalli Mandal on deputation basis in the year 2003. He was continued in the same temple inspite of cancellation of deputation by way of transfer order dated 07.07.2007. Sri Anjaneyaswamy Temple, Seethanagaram was given adoption to the third respondent/Devasthanam vide proceedings in D.Dis.No.G3/23317 /2007 dated 15.07.2007. As the existing two Junior Assistants in Sri Anjaneyaswamy Temple, Seethanagaram were already promoted to the post of Executive Officer Grade-III and as there are no Record Assistants available in the temple, the petitioner was promoted in resultant vacancy of Junior Assistant vide proceedings dated 14.09.2013 by following the circular instructions of the Commissioner, Endowments Department. It is the contention that, the petitioner became permanent employee of Sri Anjaneyaswamy Temple, Seethanagaram from 14.09.2013 by virtue of his promotion as Junior Assistant. 3. While so, Sri Anjaneyaswamy Temple, Seethanagaram was amalgamated with the third respondent/Devasthanam vide orders of the second respondent in D.Dis.No.A1/38301/2013 dated 15.03.2014, as such, from the date of amalgamation i.e. from 15.03.2014, Sri Anjaneyaswamy Temple, Seethanagaram was extinguished as independent unit and the same is merged with third respondent/Devasthanam with all its assets and liabilities along with servants of the temple to the third respondent/Devasthanam. The third respondent/Devasthanam became single unit after amalgamation for the purpose of management of the amalgamated temple as per Section 145(3) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short ‘Endowments Act’). 4. While the matter stood thus, the third respondent has issued provisional seniority list of Junior Assistants vide Rc.No.A1/3474/2016 dated 25.10.2017 showing the name of this petitioner at Serial No.17, which is between one Ch.V. Narasimharaju and Smt. P. Sunitha. The same position was confirmed in final seniority list vide Memo Rc.No.A1/3474/2016 dated 23.05.2018 showing the name of this petitioner between the same persons referred above, at Serial No.19. The same position was confirmed in final seniority list vide Memo Rc.No.A1/3474/2016 dated 23.05.2018 showing the name of this petitioner between the same persons referred above, at Serial No.19. The final seniority list was not challenged including the fourth respondent at any point of time before the competent authorities or before any Court of Law. 5. It is contended that, as per the Endowments Act and Rules framed thereunder, one should have passed in the Accountant Test for being promoted as Senior assistant and the promotion to the post of Senior Assistant is by way of non-selection i.e. only on the basis of seniority among the qualified persons besides minimum service of two years in the feeder category and the petitioner is senior to the fourth respondent, thereby he is qualified in all respects having qualified service of two years in the feeder category. But, in view of the final seniority list published, ignoring his seniority, the fourth respondent was promoted to the post of Senior Assistant. 6. The petitioner made representation on 30.10.2018 to the second respondent to promote him to the post of Senior Assistant from the date of promotion of fourth respondent, who was his junior in the feeder category. Thereafter, the petitioner made several representations, but ultimately, the second respondent directed the third respondent to promote this petitioner based on the rules as per seniority immediately and report compliance vide orders in Rc.No.A1/11026/(34)/7/2018 dated 04.06.2019. 7. After promotion of the fourth respondent dated 20.07.2018, there are three more vacancies of Senior Assistant available in the third respondent/Devasthanam. Subsequently, out of three, two vacancies were filled up with senior employees from feeder category, who were qualified by subsequent dates. Inspite of the directions of the second respondent dated 04.06.2019, the third respondent has not effected the promotion of this petitioner as Senior Assistant. Hence, the petitioner approached this court seeking such illegal action of the second respondent in promoting the fourth respondent as Senior Assistant, though this petitioner is senior to all and requested to declare the same as illegal and arbitrary, with a consequential direction to promote this petitioner to the post of Senior Assistant with all consequential and monetary benefits. 8. Respondent Nos. 1 & 4 filed their respective counter affidavits. The allegations made in the counter affidavits are almost one and the same. 8. Respondent Nos. 1 & 4 filed their respective counter affidavits. The allegations made in the counter affidavits are almost one and the same. Therefore, to avoid repetition, the gist of the counters is mentioned as under: (a) The respondents admitted about deputation of this petitioner as Record Assistant in Sri Anjaneyaswamy Temple, Seethanagaram, while working at Sri Bheemalingeswara Swamy Temple, Narasaraopet. Later promotion of this petitioner as Junior Assistant in Sri Anjaneyaswamy Temple on 14.09.2013, amalgamation of Sri Anjaneyaswamy Temple, Seethanagaram with the third respondent/Devasthanam under Section 145(3) of the Endowments Act. (b) The respondents also admitted about giving promotion to fourth respondent by the third respondent/Devasthanam, including publication of provisional seniority list Rc.No.A1/3474/2016 dated 25.10.2017 and final seniority list Rc.No.A1/3474/2016 dated 23.05.2018. (c) The specific contention of the fourth respondent is that, the petitioner approached this Court suppressing material facts conveniently and omitted to file the relevant revised final seniority list of Junior Assistants of the third respondent/Devasthanam vide Memo No.R.C.No.A1/3473 /2016 dated 12.07.2018. As per the said list, the name of this petitioner was shown at Serial No.18 and the fourth respondent was shown at Serial No.19. Further, in the remarks column, it is mentioned against the name of the writ petitioner that, “in view of audit objection on transfer of individual from Sri Bhima Lingeswara Swamy Temple, Narasaraopet to SMVSSKRS Temple, Seethanagaram by RJC, Tirupathi in Proceedings in Rc.No.A2/1217/2007 dated 07.07.2007 without existing Record Assistant post in the cadre strength of Seethanagaram is irregular and subsequent promotion, pay fixations are also irregular, he is not eligible for getting promotion as Senior Assistant at this juncture, until the objection is dropped by State Audit. Further declared that he is not qualified for Senior Assistant Promotion.” Therefore, ignoring the relevant and appropriate final seniority list, the petitioner herein filed the present writ petition and suppressed the material fact, more particularly, remarks noted in the specific column at Page No.20 of the writ affidavit. Thus, the petitioner approached this Court with unclean hands, thereby he is disentitled to claim any relief in the writ petition. 9. The respondents contended that, the petitioner was originally appointed as Sweeper in Sri Bheemalingeswara Swamy Temple, Narasaraopet, later promoted as Record Assistant and transferred to Sri Anjaneyaswamy Temple, Seethanagaram. Thus, the petitioner approached this Court with unclean hands, thereby he is disentitled to claim any relief in the writ petition. 9. The respondents contended that, the petitioner was originally appointed as Sweeper in Sri Bheemalingeswara Swamy Temple, Narasaraopet, later promoted as Record Assistant and transferred to Sri Anjaneyaswamy Temple, Seethanagaram. It is contended that, the promotion of this petitioner as Junior Assistant in Sri Bheemalingeswara Swamy Temple, Narasaraopet after his transfer to the unit of Sri Anjaneyaswamy Temple, Seethanagaram by order dated 07.07.2019 issued by the Regional Joint Commissioner, Endowments Department is illegal. 10. It is the contention of the respondents that, the petitioner was continued only on deputation in Sri Anjaneyaswamy Temple, Seethanagaram in view of the proceedings in D.Dis.No.A1/38301 /2013 dated 15.03.2014, merging Sri Anjaneyaswamy Temple, Seethanagaram with the third respondent/Devasthanam under Section 145(3) of the Endowments Act. Consequent upon amalgamation of Sri Anjaneyaswamy Temple, Seethanagaram, the petitioner was assigned the last rank in the cadre of Junior Assistants in the third respondent/Devasthanam. 11. It is contended by the fourth respondent that, when once Sri Anjaneyaswamy Temple, Seethanagaram is amalgamated, the petitioner must be shown at the last serial number in the list. But the petitioner is claiming seniority over the fourth respondent and claiming promotion to the post of Senior Assistant illegally. It is also contended that the petitioner was repatriated to Sri Bheemalingeswara Swamy Temple, Narasaraopet vide proceedings in L.Dis.No.A1/COE-11026/119/2019 dated 06.01.2020. The office of the Commissioner of Endowments Department issued proceedings in Rc.No.B2/3183837/2019-1 dated 18.02.2020 informing that the born cadre employees who were appointed in the third respondent/Devasthanam unit are entitled for pay and other service benefits, as applicable in their parent institution only. Again the State Government issued Memo No.Endw/154.II/2020 dated 16.03.2020 calling upon the third respondent to furnish the detailed report along with connected records for taking further action in the matter. Meanwhile, the proceedings in Rc.No.B2/3183837/2019-1 dated 18.02.2020 is kept in abeyance until further orders. Thus, the petitioner is not a member of the unit of the third respondent/Devasthanam and this controversy is likely to be settled within short time and requested to dismiss the writ petition. 12. Meanwhile, the proceedings in Rc.No.B2/3183837/2019-1 dated 18.02.2020 is kept in abeyance until further orders. Thus, the petitioner is not a member of the unit of the third respondent/Devasthanam and this controversy is likely to be settled within short time and requested to dismiss the writ petition. 12. During hearing, Sri D.V. Sashidhar, learned counsel appearing for the petitioners reiterated the contentions mainly demonstrating that this petitioner was promoted as Junior Assistant on his transfer to Sri Anjaneyaswamy Temple, Seethanagaram and he became member of the unit of Sri Anjaneyaswamy Temple, Seethanagaram. On account of amalgamation of Sri Anjaneyaswamy Temple, Seethanagaram to the third respondent/Devasthanam, by virtue of Section 145(3) of the Endowments Act, it became a single unit and this petitioner became an employee of the third respondent/Devasthanam, thereby, he is entitled to claim promotion being a senior employee to the fourth respondent, in view of the final seniority list issued by third respondent/Devasthanam and failure to implement the proceedings issued by Respondent Nos. 2 and 3 to permit this petitioner is illegal. Though several proceedings were referred by the learned Standing Counsel for Endowments, they are kept in abeyance and consequently the third respondent/Devasthanam is bound to act upon the direction issued by the second respondent to promote this petitioner and failure to promote this petitioner would constitute a serious illegality, affecting the career of this petitioner and such arbitrary action is liable to be set-aside. 13. Whereas, Sri K. Madhava Reddy, learned Standing Counsel for Endowments would contend that the final report was submitted by the third respondent to set right the anomalies in the temple merger, at the time of merger and permitting this petitioner as Junior Assistant while working in Sri Anjaneyaswamy Temple, Seethanagaram, till action is taken on the report submitted by the third respondent/Devasthanam, a direction cannot be given, since the very promotion of this petitioner to the post of Junior Assistant itself is an illegality, as he was on transfer being a member of Sri Bheemalingeswara Swamy Temple, Narasaraopet. At best, he is entitled to get promotion in Sri Bheemalingeswara Swamy Temple, Narasaraopet unit, but not in the unit of Sri Anjaneyaswamy Temple, Seethanagaram and requested to dismiss the writ petition. 14. At best, he is entitled to get promotion in Sri Bheemalingeswara Swamy Temple, Narasaraopet unit, but not in the unit of Sri Anjaneyaswamy Temple, Seethanagaram and requested to dismiss the writ petition. 14. Sri Ramalingeswara Rao Kocherlakota, learned counsel for the fourth respondent reiterated the contentions urged in the counter affidavit, while submitting that this petitioner was not born servant in the unit of third respondent/Devasthanam on compassionate grounds and when Sri Anjaneyaswamy Temple, Seethanagaram was amalgamated with the third respondent/Devasthanam, as per the orders of the second respondent, the employees in Sri Anjaneyaswamy Temple, Seethanagaram shall be given last rank in the list of seniority. But, the petitioner could manage everything and seniority was fixed placing him above the fourth respondent which is a serious illegality. Apart from that, he was neither a member of Sri Anjaneyaswamy Temple, Seethanagaram nor the third respondent/Devasthanam, but he is a member of Sri Bheemalingeswara Swamy Temple, Narasaraopet, thereby his promotion as Junior Assistant in the unit as Sri Anjaneyaswamy Temple, Seethanagaram and fixation of seniority in the third respondent/Devasthanam is tainted by serious illegalities and State is about to take action to set-right the anomalies in the seniority list, and till such decision is taken by the Government, the petitioner is not entitled to claim any promotion to the next higher cadre i.e. Senior assistant from the post of Junior Assistant and this Court cannot issue a direction to perpetuate the illegality and requested to dismiss the writ petition. 15. Considering rival contentions, perusing the material available on record, the point need to be answered by this Court is as follows: “Whether the petitioner is a member of the unit of the third respondent/Devasthanam to claim benefit by promotion to the next higher cadre i.e. Senior Assistant. If so, whether denial of promotion to this petitioner is an illegality and liable to be declared as illegal and arbitrary?” P O I N T: 16. Admittedly, the petitioner was a member of Sri Bheemalingeswara Swamy Temple, Narasaraopet, which is a separate unit for the purpose of promotion and seniority. He was deputed to work in Sri Anjaneyaswamy Temple, Seethanagaram and later he was repatriated to parent unit of Sri Bheemalingeswara Swamy Temple, Narasaraopet. Again, the petitioner was transferred to Sri Anjaneyaswamy Temple, Seethanagaram as Record Assistant. He was deputed to work in Sri Anjaneyaswamy Temple, Seethanagaram and later he was repatriated to parent unit of Sri Bheemalingeswara Swamy Temple, Narasaraopet. Again, the petitioner was transferred to Sri Anjaneyaswamy Temple, Seethanagaram as Record Assistant. Since then he continuously worked in the same cadre and transferred to Sri Anjaneyaswamy Temple, Seethanagaram while continuing as employee in the parent unit of Sri Bheemalingeswara Swamy Temple, Narasaraopet. But, for one reason or the other, he was promoted as Junior Assistant in Sri Anjaneyaswamy Temple, Seethanagaram, though he was not absorbed in the unit of Sri Anjaneyaswamy Temple, Seethanagaram, consequent upon promotion to another senior employee as Senior Assistant. But, the same was not challenged by anyone and allowed to continue in the same cadre till date though Sri Anjaneyaswamy Temple, Seethanagaram is amalgamated with third respondent/ Devasthanam and became a part of third respondent/ Devasthanam unit. On account of merger, the employees working in Sri Anjaneyaswamy Temple, Seethanagaram were also taken as part of unit and at this stage, it is relevant to advert to the proceedings in D.Dis.No.G3/23317/2007 dated 15.07.2007 issued by the Commissioner of Endowments, exercising power under Section 145(3) of the Endowments Act, the operative portion of the order is extracted hereunder for better appreciation. “The Executive Officer of Sri Durga Malleswara Swamy varla Devasthanam, Vijayawada is requested to take necessary action to administer the said adopted temple as per the provisions laid down in the Act 30/87 and Rules made there under. He is also requested to watch the progress of the financial position of the temple and report when it becomes self sustained as per Section 145(2) of the Act 30/87” 17. The Commissioner, Endowments Department, Andhra Pradesh in D.Dis No.A1/38301/2013 dated 15.03.2014 issued certain instructions in pursuance of the proceedings issued under Section 145(1) of the Endowments Act. The following are the conditions: 1. On amalgamation, the institutions shall be deemed to comprise a single institution and administered as if they were a single institution published u/s 6 of the Act 30/87. 2. If the amalgamated institutions are found to be capable of being managed by themselves, the orders of amalgamation may be revoked by the Commissioner in the interest of proper management of administration. 3. The Executive Officer of Sri Durga Malleswara Swamyvarla Devasthama, Vijayawada, to which the above institutions are amalgamated shall maintain and administer such institutions. 4. 2. If the amalgamated institutions are found to be capable of being managed by themselves, the orders of amalgamation may be revoked by the Commissioner in the interest of proper management of administration. 3. The Executive Officer of Sri Durga Malleswara Swamyvarla Devasthama, Vijayawada, to which the above institutions are amalgamated shall maintain and administer such institutions. 4. The staff working in the establishment of amalgamated institutions shall be assigned last rank in the seniority of their respective cadre posts in the establishment of Sri Durga Malleswara Swamyvarla Devasthanam, Vijayawada.” 18. In view of Condition No.4, the employees working in the third respondent/Devasthanam shall be given last rank in the seniority and thereby the petitioner is entitled to claim last rank in the seniority in the cadre of Junior Assistants. The petitioner placed on record the provisional seniority list published by the third respondent/Devasthanam in Rc.No.A1/3474/2016 dated 25.10.2017 calling for objections within ten days. 19. Name of this petitioner was shown at Serial No.17, after the name of Ch.V. Narasimha Raju, whereas, the fourth respondent is shown at Serial No.18. The petitioner was appointed on promotion as Junior assistant on 26.03.2014, whereas, Smt. P. Sunita/fourth respondent was appointed as Junior Assistant on 11.04.2014 as per column mentioned for Junior Assistants in the Temple. Thus, the fourth respondent was appointed subsequent to appointment of this petitioner in the cadre of Junior Assistant. But, in view of the amalgamation proceedings D.Dis.No.G3/23317 /2007 dated 15.07.2007, conditions imposed by proceedings D.Dis No.A1/38301/2013 dated 15.03.2014, the petitioner is entitled to be placed above Smt. P. Sunita, subject to validity of his promotion in Sri Anjaneyaswamy Temple, Seethanagaram in the cadre of Junior Assistant, by the date of amalgamation and by the date of instructions issued by the Vigilance Officer dated 15.03.2014, she was not born as an employee in the unit of the third respondent. Therefore, placing this petitioner above the fourth respondent in the provisional seniority list and final seniority list is prima facie in accordance with law. But, for one reason or the other, the fourth respondent was promoted as Senior Assistant, ignoring the seniority of this petitioner on merger/ amalgamation of Sri Anjaneyaswamy Temple, Seethanagaram with the third respondent, since the petitioner was not even a member of the service in the unit of the third respondent as on date of amalgamation. 20. But, for one reason or the other, the fourth respondent was promoted as Senior Assistant, ignoring the seniority of this petitioner on merger/ amalgamation of Sri Anjaneyaswamy Temple, Seethanagaram with the third respondent, since the petitioner was not even a member of the service in the unit of the third respondent as on date of amalgamation. 20. As the petitioner was not promoted as Senior Assistant, the petitioner made several representations and on the basis of representations, the Commissioner of Endowments/the second respondent herein issued proceedings in Rc.No.A1/11026(34) /7/2018 dated 04.06.2019 directing the third respondent to take urgent action to give promotion to the petitioner based on the Rules and as per seniority list immediately and report compliance. 21. When the second respondent issued a direction, the third respondent is under obligation to implement the order. But, till date the order was not challenged. Therefore, such inaction of the third respondent is illegal and arbitrary. 22. Though several proceedings are placed on record, i.e. proceedings were kept in abeyance till final decision is taken by the Government on the report submitted by the third respondent to the Government. Therefore, the real controversy is with regard to absorption of the petitioner in Sri Anjaneyaswamy Temple, Seethanagaram, as he was transferred from Sri Bheemalingeswara Swamy Temple, Narasaraopet unit to the unit of Sri Anjaneyaswamy Temple, Seethanagaram in the circumstances stated in the letter. But, still he is deemed to continue as a member of the unit of Sri Bheemalingeswara Swamy Temple, Narasaraopet. When he was deemed to be continuing as a member of Sri Bheemalingeswara Swamy Temple, Narasaraopet, permitting him to the cadre of Junior Assistant from the cadre of Record Assistant itself is an irregularity. But, this Court is not required to decide such issue, since the illegality of promotion of this petitioner to the Junior Assistant in the unit of Sri Anjaneyaswamy Temple, Seethanagaram is not an issue before this Court. 23. When once the seniority list was prepared by the third respondent/Devasthanam, he is deemed to be a member of the third respondent till the seniority list is set-aside or revised. However, the Government proposed to take action to set right the anomalies pointed out by the third respondent in appointment of this petitioner and it is pending for consideration. 23. When once the seniority list was prepared by the third respondent/Devasthanam, he is deemed to be a member of the third respondent till the seniority list is set-aside or revised. However, the Government proposed to take action to set right the anomalies pointed out by the third respondent in appointment of this petitioner and it is pending for consideration. Therefore, this Court without expressing any opinion as to the legality or illegality with regard to absorption of this petitioner in Sri Anjaneyaswamy Temple, Seethanagaram, in view of the final seniority list published by the third respondent/Devasthanam, the petitioner being senior to the fourth respondent is to be considered for promotion and he is entitled to claim promotion to the next higher cadre of Senior Assistant. But, refusing to consider the case of this petitioner for promotion to the next higher cadre is an illegality and arbitrary. 24. Therefore, the action of the third respondent is hereby declared as illegal and violative of Article 16 of the Constitution of India. Consequently, the third respondent/Devasthanam is directed to consider the case of this petitioner for promotion to the next cadre of Senior Assistant, if he is otherwise eligible, subject to the decision taken by the Government regarding the observation of this petitioner in Sri Anjaneyaswamy Temple, Seethanagaram in the cadre of Junior Assistant and consequential promotion to Junior Assistant. Accordingly, the point is answered in favour of this petitioner and against the respondents. 25. In the result, writ petition is allowed, declaring the action of the third respondent in not considering the candidature of this petitioner for promotion to the post of Senior Assistant on par with fourth respondent as illegal and arbitrary. Consequently, the third respondent is directed to consider the petitioner’s case for promotion to the cadre of Senior Assistant with effect from the date of promotion of the fourth respondent as Senior Assistant. This order is subject to the order being passed by the Government regarding absorption of the petitioner in Sri Anjaneyaswamy Temple, Seethanagaram, as he was transferred from Sri Bheemalingeswara Swamy Temple, Narasaraopet unit to the unit of Sri Anjaneyaswamy Temple, Seethanagaram and till the anomalies in amalgamation and repatriation and re-amalgamation, by the Government. 26. Consequently, miscellaneous applications pending if any, shall stand closed.