Research › Search › Judgment

Andhra High Court · body

2022 DIGILAW 778 (AP)

E. Saritha v. State of Andhra Pradesh

2022-08-22

K.MANMADHA RAO

body2022
JUDGMENT Dr. K. Manmadha Rao, J. - This petition is filed under Article 226 of the Constitution of India for the following relief:- '...to issue a writ order or direction more particularly one in the nature of Writ of Mandamus declaring the proceedings No. AMP/1920/2018-NZ, dated 06.06.2018 issued by the 2nd respondent by imposing terms and conditions viz. (i) his Annual Increment be deferred for a period of ONE Year with cumulative effect on future increments (ii) The period from the date of removal from service till the date of joining duty is treated as Not On Duty for all purposes as illegal, arbitrary, unjust and contrary to the rules and law on the subject and set aside the punishment of deferment of annual increment and consequently direct the Respondents to give continuity of service with all back wages service benefits attendant benefits and all monetary benefits by treating the suspension and removal period of the petitioner from 10.7.2013 to 06.6.2018 as on duty with all consequential and attendant benefits and pass such other order or orders.......' 2. Brief facts of the case are that the petitioners herein are working as Agricultural Extension Officers Gr-II (AEO Gr-II and being appointed on 24.11.2012 and 24.01.2013 respectively. The post of AEO Gr-II is feeder category for being promoted as Agricultural officer (AO) and for being promoted as AO the in-service AEO should complete B.Sc. (Agriculture). Both the petitioners have done their B.Sc. (Agriculture) as in-service candidates and completed it by September, 2020. In the same academic year, six petitioners in W.P. No. 25660 of 2020 have also completed their B.Sc. (Agriculture) along with the petitioners by September, 2020. Upon successful completion of petitioners' B.Sc. (Agriculture), both they, including said petitioners in W.P. No. 25660 of 2020, through proper channel, submitted certificates along with individual requests/representations dated 18.9.2020 and 21.09.2020 respectively for consideration of their names to be included in seniority list prepared with eligible candidates for promoting them as AOs. But arbitrarily and discriminatively besides contrary to Rules-5 (c), 6(b) etc. of the State and Subordinate Service Rules, all the petitioners names, including the names of the said petitioners in W.P. No. 25660 of 2020, were not included in seniority list in order to consider all their candidatures for AO promotion on the pretext of submitting their certificates after 1st September, 2020. of the State and Subordinate Service Rules, all the petitioners names, including the names of the said petitioners in W.P. No. 25660 of 2020, were not included in seniority list in order to consider all their candidatures for AO promotion on the pretext of submitting their certificates after 1st September, 2020. Aggrieved by the same, all of those six AEOs, approached this Court by way of fling the above said W.P. No. 25660 of 2020 and the same was allowed by this Court vide order dated 10.08.2021. Since the petitioners have submitted their representations to the 2nd respondent for consideration of their candidatures for AO promotion, but there is no response. Hence, the present writ petition. 3. No counter affidavit is filed by the respondents till today and adjourning the matter for filing counter affidavit, again learned Government Pleader appearing for the respondents sought time for filing counter affidavit. It appears that the respondents did not choose to file counter affidavit and failed to comply with the Rule 12(1) of the Writ Proceedings Rules, 1977. Following the decision of erstwhile High Court of Andhra Pradesh in 'J. Ramachandraiah Vs. Government of Andhra Pradesh and Others' (2012) 4 ALD 366 this Court finds that the respondents violated the Rule 12 of the Writ Proceedings Rules, 1977. Therefore, this Court without expecting counter affidavit by the respondents, decided to dispose of the matter. 4. Heard learned counsel appearing for the petitioners and learned Government Pleader for Agriculture & Cooperation appearing for the respondents. 5. Learned counsel for the petitioners argued that the action of the 2nd respondent in not considering the candidatures of the petitioners for Agricultural Officer (AO) promotion in Zone-IV along with those who got promoted in October, 2020 on the pretext of submitting B.Sc. (Agriculture) certificates after 1st September, 2020; and also in not considering the candidatures of the petitioners for AO promotion on the pretext of not approaching this Court and obtained orders on par with the writ petitioners in W.P. No. 25660 of 2020, dated 10.08.2021, is neither sustainable in the eye of law nor facts of the case. He further argued that the 2nd respondent ought to have promoted the petitioners in the light of the order dated 25.10.2019 in W.P. No. 1648 of 2019 and also submitted that the 2nd respondent ought to have seen the letter and spirit of G.O.Ms. He further argued that the 2nd respondent ought to have promoted the petitioners in the light of the order dated 25.10.2019 in W.P. No. 1648 of 2019 and also submitted that the 2nd respondent ought to have seen the letter and spirit of G.O.Ms. No. 250 No. 225, dated 11.03.1976 an G.O.Ms. No. 250, dated 06.10.2019 in order to promote the B.Sc. (Agriculture) passed in service AEOs like petitioners since the very object behind sponsoring them to study B.Sc. (Agriculture) is to give them promotions immediately after completion of their course on deputation. Therefore, learned counsel requests this Court to pass appropriate orders. 6. Learned counsel for the petitioners also placed reliance on the decision of Hon'ble Supreme Court reported in Babubhai v. State of Gujarat and others (2010) 12 SCC 254 and Kailash Chandra v. Union of India AIR 1961 SC 1346 , where the word 'ordinarily' was considered. He also stated that the word 'ordinarily' means normally and that there can always be 'exceptions'. Therefore, he submits that as vacancies are available, the writ petition should be allowed. 7. Since there is no dispute about the fact that the petitioners have acquired qualification for B.Sc. Agriculture, in the opinion of this Court, the issue turns around the interpretation of Rule 6(b). This Rule is as follows: 6. Method of preparation of Panels: (b) The panel of candidates for appointment by transfer to a service or a class of service in any case, where the Commission is not consulted on the suitability of a candidate for such appointment under sub-clause (b) of Clause (3) of Article 320 of the Constitution of India or for promotion, shall be prepared ordinarily during the months of September every year on the basis of estimate of vacancies sent in terms of sub-Rule (d). First September of the year shall be reckoned as the qualifying date to determine the eligibility of a candidate for such appointment, which shall cease to be in force on the afternoon of the 31st December of the succeeding year or till the next panel is prepared whichever is earlier and for the purpose of preparing the said panel, the zone of consideration shall be in the ratio of 1:3. The period from 1st September of the year to the 31st August of the succeeding year shall be reckoned for the purpose of determining the number of vacancies during the panel. The other relevant parts of the Rule are reproduced hereunder: 6(g) The following persons shall be considered for inclusion in any panel prepared under sub-Rules (b) and (c). (i) Persons who are qualified on the qualifying date including those who had been included in the previous panel of approved candidates but who have not commenced their probation. (ii) Persons who had not possessed the prescribed qualifications at the time of preparation of the previous panel, but who have since acquired such qualification and are qualified as on the qualifying date. 8. As rightly submitted by the learned counsel and as per the settled law, one of the primary Rules of interpretation is the plain language interpretation of a Rule. If this is adopted as the basis of interpretation of Rule 6(b), it is clear that the word 'ordinarily' that is used is included with a specific purpose and it is not a surplus age. The reading of the Rule would make it clear that the list shall be prepared 'ordinarily' during the months of September of every year. 1st September shall be reckoned as the qualifying date normally or in ordinary circumstances. This interpretation is as interpreted by the Hon'ble Supreme Court of India in Babubhai's case (supra) at para 41 as follows: 41. The expression ordinarily means normally and it is used where there can be an exception. It means in the large majority of cases but not invariably. 'Ordinarily' excludes 'extra-ordinary' or special circumstances'. (vide: Kailash Chandra v. Union of India AIR 1961 SC 1346 ; Eicher Tractors Ltd., Haryana v. Commissioner of Customs, Bombay AIR 2001 SC 196 and State of A.P. v. Sarma Rao. 9. Similarly, in Kailash Chandra's case (supra), in para 8, the Hon'ble Supreme Court held as follows: '8. This intention is made even more clear and beyond doubt by the use of the word 'ordinarily'. 'Ordinarily' means 'in the large majority of cases but not invariably'. This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues to be efficient. This intention is made even more clear and beyond doubt by the use of the word 'ordinarily'. 'Ordinarily' means 'in the large majority of cases but not invariably'. This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues to be efficient. The intention of the second clause therefore clearly is that while under the first clause the appropriate authority has the right to retire the servant who falls within clause (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further. This option to retain for the further period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option the authority has to consider circumstances other than the question of efficiency also; in the absence of special circumstances he 'should' retain the servant; but what are special circumstances is left entirely to the authority's decision. Thus, after the age of 55 is reached by the servant the authority has to exercise its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if he continues to be efficient.' 10. The word 'ordinarily' in its normal parlance means 'normally'. Therefore, it is clear that Rule 6 (b) should itself read as normally during the month of September every year, the list should be prepared which leads to the conclusion that there could be situations when the same is not possible or if the ordinary circumstances are not present. The proviso to Rule 6(b) is as follows: Provided that if the number of candidates to be included in the panel falls short of the number of vacancies estimated such shortfall shall be made good by considering the claims of the other qualified and eligible candidates, if any, in the seniority list placed immediately below. The proviso to Rule 6(b) is as follows: Provided that if the number of candidates to be included in the panel falls short of the number of vacancies estimated such shortfall shall be made good by considering the claims of the other qualified and eligible candidates, if any, in the seniority list placed immediately below. Provided further that the panel of candidates so prepared shall be reviewed after a period of six months reckoned from the date of approval of the panel, for the purpose of considering the cases of such other persons whose names were not included in the panel prepared earlier for not passing the prescribed tests or for not having special qualifications prescribed under the Rules, if they have subsequently passed those tests or acquired the said qualifications and are otherwise found suitable for inclusion in the panel of the year. No such review of list of approved candidates shall, however, be undertaken where no tests or special qualifications are prescribed under the Rules as condition precedent for promotion or appointment by transfer: Provided also that no panel of candidates need be prepared: 11. This proviso makes it clear that if the candidates have subsequently passed the tests or acquired the qualifications, for inclusion in the panel of that year, their names can also be considered after a period of six months from the date of approval. The proviso as per the settled law on the subject carves out an 'exception' to the General Rule or the section. The law is very well settled and need not be repeated here once again. Therefore, a reading of this proviso would make it clear that people who have subsequently passed the tests or acquired qualification can be included in the 'panel' of the year. In addition, sub-Rule 6g(ii) also states that people who have since acquired the qualification as on the qualifying date can also be included in the list. 12. A reading of these Rules together makes it clear that the words used in Rule 6(b) are not mandatory and that depending on the situation and the exigencies the word 'ordinarily' can be interpreted. As the Hon'ble Supreme Court has said, the word 'ordinarily' means 'normal' and so there can always be exceptions. 12. A reading of these Rules together makes it clear that the words used in Rule 6(b) are not mandatory and that depending on the situation and the exigencies the word 'ordinarily' can be interpreted. As the Hon'ble Supreme Court has said, the word 'ordinarily' means 'normal' and so there can always be exceptions. Therefore, by a cumulative reading of all these clauses in seriatim and as there is no serious dispute about the other facts, this Court holds that the rejection or the failure of the respondents to include the names of the petitioners in the list only on the ground that they submitted their certificates after 1st September, 2020 is held to be incorrect. 13. The only fault of the petitioners (who have acquired the required educational qualification) is the delayed submission of documents by a few days if the educational qualifications could be relaxed after the final seniority list is prepared this Court holds that similar benefit must be extended to the petitioners also. Therefore, both in fact and in law, the petitioners are entitled to the relief as prayed for. 14. Accordingly, the Writ Petition is allowed. The respondents are directed to consider the candidature of the petitioners for AO promotion on par with those who got promoted as AOs in October 2020 and also on par with the writ petitioners in W.P. No. 25660 of 2020 and pass appropriate orders within eight (08) weeks from the date of receipt of a copy of this order. No order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed.