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2023 DIGILAW 1097 (AP)

Medi Vijaya Kumar v. State Of Andhra Pradesh

2023-07-18

VENKATESWARLU NIMMAGADDA

body2023
ORDER : 1. The present Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief: “... to issue an appropriate writ, order or direction more particularly one in the nature “WRIT OF MANDAMUS” declaring the inaction of the respondents in not bringing amendment to the panchayat service rules governed by vide G.O.Ms.No.347 PR&RD (E.VII.2) Dept, dated 21.11.2001 to fill 34% quota from the feeder category of administrative officers to the post of MPDO to substantive posts instead of substantive vacancies as was done in revenue and audit departments vide G.O.Ms.No.1835, Revenue (SER.II) department, dated 04.11.2021 and G.O.Ms.No.187, Finance (ADMN.III) departments, dated 27.11.2017, as illegal, discriminatory, violative of Articles 14, 16 and 21 of the Constitution of India and consequently direct the respondents to forthwith take steps for amending the aforesaid rules to remove the hardship being faced by the petitioners and pass such other order or orders…” 2. Heard Sri K. Rathangapani Reddy, learned counsel for the petitioners, Sri M. Vijaya Kumar, learned Senior Counsel for Respondent Nos.4 to 27 and learned Government Pleader for Services-IV. 3. The case of the petitioners is as follows: 4. Petitioners herein are working as Administrative Officers (Previously Superintendents, now re-designated as Administrative Officers) at various Mandal Praja Parishads and Zilla Praja Parishads in Panchayat Raj Department. Next promotion post to the Administrative Officers is Mandal Praja Parishad Development Officer (MPDO) by following 20 point cycle to fill up the posts as per the ratio fixed vide G.O.Ms.No.330, Panchayat Raj & Rural Development (E.VII.2) Department, dated 28.10.2004 and as per the service rules framed vide G.O.Ms.No.347, Panchayat Raj & Rural Development (E.VII.2) Department, dated 21.11.2001. 34% of substantive vacancies of MPDO are earmarked for filling by Administrative Officers and the percentage has to be calculated on substantive vacancies and not on the cadre strength. 5. Learned counsel for the petitioners argues that the majority of Administrative Officers/Superintendents are being promoted as MPDOs (Mandal Parishad Development Officers) towards the end of their careers. Consequently, they retire shortly after assuming the position, in contrast to direct recruits and promotees from other categories of Extension Officers in the Panchayat Raj & Rural Development Department. 6. Learned counsel for the petitioner emphasizes about the potential imbalance that could arise within the department if the quota for Administrative Officers is continually decreasing. Consequently, they retire shortly after assuming the position, in contrast to direct recruits and promotees from other categories of Extension Officers in the Panchayat Raj & Rural Development Department. 6. Learned counsel for the petitioner emphasizes about the potential imbalance that could arise within the department if the quota for Administrative Officers is continually decreasing. He argues that such a situation may lead to a limited number of Administrative Officers/Superintendents getting the opportunity to serve as MPDOs, affecting their career progression and representation within the department. 7. The learned counsel for the petitioners further argues that the respondents are currently contemplating the promotion of Administrative Officers to the position of MPDOs, allotting them a quota of 34% out of the total vacancies during each recruitment cycle. However, the counsel highlights that these 34% positions are not being designated as substantive posts due to the short period of retirement.. In existing MPDO’s, the other category persons are more in number and the same was explained as below: Sl. No. Feeder Cadre Total % as per G.O.Ms.No .330 No.of Posts allotted Present working strength Excess /Shortage 1. Direct Recruitment 30 198 243 62 Excess 2. EO PR&RD and EO Gr.I(29%+4%) 33 218 238 20 Excess 3. Assistant Section Officers 3 20 5 15 Shortage 4. Administrative Officers of MPP/ZPP (Superintendents) 34 224 68 156 Shortage Total 100 660 554 8. Learned counsel for the petitioners further submits that petitioners Association submitted a representation to Respondent No.1 dated 10.06.2022 requesting to amend the existing rules issued vide G.O.Ms.No.330 dated 28.10.2004 and also to notify that the 34% quota should be by way of substantive posts, but not out of vacancies. He further submits that after submission of representation by the petitioners Association, Respondent No.3 addressed a letter dated 08.09.2022 to Respondent No.1, explaining the factual position in holding posts by four different categories as per G.O.Ms.No.330, dated 28.10.2004 and also recommended for the quota should be modified as in respect of substantive posts instead of total vacancies. 9. Learned counsel for the petitioners also contends that in similar circumstances, Andhra Pradesh Revenue Sub-Ordinate Service Rules were amended vide G.O.Ms.No.1835, Revenue (SER.II) Department, dated 04.11.2011 fixing the quota to different categories out of substantive posts rather than vacancies. Similarly, in respect of State Audit Department, the Andhra Pradesh State Audit Service Rules were amended vide G.O.Ms.No.187, Finance (Admn. 9. Learned counsel for the petitioners also contends that in similar circumstances, Andhra Pradesh Revenue Sub-Ordinate Service Rules were amended vide G.O.Ms.No.1835, Revenue (SER.II) Department, dated 04.11.2011 fixing the quota to different categories out of substantive posts rather than vacancies. Similarly, in respect of State Audit Department, the Andhra Pradesh State Audit Service Rules were amended vide G.O.Ms.No.187, Finance (Admn. III) Department, dated 27.11.2017, fixing the quota for Substantive allowance rather than vacancies. He further submits that the case of the petitioners should be considered on par with Revenue Department as well as State Audit Department as stated above and also direct the Respondent No.1 to issue appropriate orders by considering the letter addressed by Respondent No.3 dated 08.09.2022 and 03.03.2020, pursuant to the representation by the Petitioners Association, dated 10.06.2022, as such the present writ petition is liable to be allowed. 1st vacancy Direct Recruitment 2nd vacancy Direct Recruitment 3rd vacancy Direct Recruitment 4th vacancy E.O.(PR&RD) 5th vacancy Superintendent, ZPP/MPP 6th vacancy Superintendent, ZPP/MPP 7th vacancy E.O.(PR&RD) 8th vacancy Superintendent, ZPP/MPP 9th vacancy E.O.(PR&RD) 10th vacancy Direct Recruitment 11th vacancy Direct Recruitment 12th vacancy Direct Recruitment 13th vacancy Superintendent 14th vacancy Superintendent 15th vacancy E.O.(PR&RD) 16th vacancy E.O.(PR&RD) 17th vacancy ASO / Senior Stenographers of secretariat from the combined seniority other than finance & Planning (FW) Department and Law Department/Extension Officer (PR &RD) 18th vacancy Superintendent, ZPP/MPP 19th vacancy E.O.(PR&RD) 20th vacancy Superintendent, ZPP/MPP 10. Learned Government Pleader for the respondents filed counter affidavit on behalf of Respondent No.3, wherein it is stated that State Government in G.O.Ms.No.347, PR&RD (E.VII.2) Department, Dt.21.11.2001 have issued service rules relating to method of appointment governing the post of MPDO of this department and the appointment to the post of MPDO shall be made in the following order as per G.O.Ms.No.330, PR&RD (E.VII.2) Department, Dated 28.10.2004. 11. As per the above cycle 1. Thirty (30) percent of arising Vacancies of MPDO’s are being filled up by Direct Recruitment. 12. It is further stated that no injustice was done to the Superintendent /Administrative Officers of MPP / ZPP, as 34% of vacancies are strictly filled up from the feeder category of Administrative Officers in the vacancies of Mandal Parishad Development Officers. Thirty (30) percent of arising Vacancies of MPDO’s are being filled up by Direct Recruitment. 12. It is further stated that no injustice was done to the Superintendent /Administrative Officers of MPP / ZPP, as 34% of vacancies are strictly filled up from the feeder category of Administrative Officers in the vacancies of Mandal Parishad Development Officers. As they are retiring due to short length of service, than the number of Extension Officers (PR&RD) promoted as Mandal Parishad Development Officers and the number of Direct Recruitee Mandal Parishad Development Officers appearing large due to their long service. It is further stated that only two departments i.e., Revenue and Finance Department have only amended Rules as stated by the petitioners. But, all other Government Departments are following their own departmental Rules for filling vacancies by promotion in substantive vacancies. 13. It is further stated that there are 280 vacancies of Mandal Parishad Development Officers which are to be filled up from the feeder categories of Administrative Officers and Extension Officers (PR&RD) and on direct recruitment. 100 Officers in each feeder category are getting opportunity of promoted as Mandal Parishad Development Officer. The feeder category of Extension Officers (PR&RD) who are to be promoted as Mandal Parishad Development Officers are not getting their promotion, which is effecting their career prospectus. The present promotions to the vacancies of Mandal Parishad Development Officers will be filled on Adhoc basis which will be regularized subsequently. Out of the 19 petitioners 8 petitioners with Sl. Nos. 3, 4, 5, 6, 9, 11, 14 & 16 are included ever in the confirmed seniority list with Sl.Nos. 196, 201, 266, 273, 467, 479, 537 & 562 consists of 596 Administrative Officers and the remaining 11 petitioners are not seniors and not yet included in the above confirmed seniority list and they will not get promotion for the present panel year. Due to the Writ Petition filed by the petitioners the senior Administrative Officers who have fulfilled all required eligibilities for promotion of Mandal Parishad Development Officers were also affected as their promotion is held up which is affecting their career prospectus. 14. Learned Government Pleader for the respondents submits that the contention of the learned counsel for the petitioners is under active consideration, in view of the letter addressed by Respondent no.3 dated 08.09.2022 and 03.03.2020, pursuant to the representation of the petitioners Association. 14. Learned Government Pleader for the respondents submits that the contention of the learned counsel for the petitioners is under active consideration, in view of the letter addressed by Respondent no.3 dated 08.09.2022 and 03.03.2020, pursuant to the representation of the petitioners Association. He further submits that since the mater relates to different groups / categories, the claims of all groups should be considered and it is a matter of policy, which should be amended by Respondent No.1. But in view of the interim orders of this Court dated 09.12.2022, the entire promotions came to be stalled and in view of the same, the day-to-day administration is getting very difficult and even the members of the petitioners Association who were in due for promotion for this panel year are deprived from promotion. Interim Orders of this Court dated 09.12.2022 are extracted as under: “Learned Government Pleader for Services –IV undertakes not to finalize the promotions till the next date of hearing.” 15. Learned Government Pleader for the respondents submits that in view of the administrative exigencies and for peaceful administration of the departments, the interim orders as mentioned above dated 09.12.2022 should be vacated. He further submits that this Court can fix the timeline for consideration of the letters addressed by Respondent No.3 dated 03.03.2020 as well as 08.09.2022 to Respondent No.1 within a period of six months. 16. Sri K. Bheemarao, learned counsel for unofficial respondent Nos.4 to 27 also filed counter affidavit in I.A.No.1 of 2023, wherein it is stated that Respondent Nos.4 to 24, who were initially appointed as Junior Assistants and then promoted as Senior Assistants and thereafter promoted as Administrative Officers are presently fully qualified and eligible for promotion to the post of M.P.D.O's. In this connection, the Official Respondents included the names of the unofficial Respondents in the Seniority List. Respondent No.3 confirmed the final seniority list issued vide proceedings Rc.No. 692327/CPR and RD/C2/2018 dated 28.09.2021. Respondent No.3 confirmed the final seniority list issued vide proceedings Rc.No. 692327/CPR and RD/C2/2018 dated 28.09.2021. It is further stated that some of the Administrative Officers who are far Juniors to the unofficial Respondents filed the above writ petition for amendment of the Panchayath Raj Service Rules issued vide G.O.Ms.No.347, dated 21.11.2001 to fill 34% quota from the category of Administrative Officer to the post of M.P.D.O to the substantive Posts instead of Substantive vacancies as was done in Revenue and Audit Departments dated 27.11.2017 as illegal, discriminatory and consequently Direct the Respondents to forthwith take steps for amending the aforesaid Rules to remove hardship being faced by the Petitioners. It is also further stated that the above writ petition came up for hearing on 09.12.2022 and the learned Government Pleader for Services-IV under takes not to finalize the promotion till the date of hearing and by virtue of the orders passed by Hon'ble Court dated 09.12.2022, the respondents are not undertaking promotions and admittedly the unofficial respondents are fully qualified eligible for promotion to the post of M.P.D.O. 17. Learned counsel for the unofficial respondents submits that in view of the orders of this Court, the promotions for the post of MPDO’s were not taken place since 10.12.2022, as such there are nearly 217 vacancies of MPDO’s out of which 200 vacancies are to be filled up from the feeder category of Administrative Officers / Executive Officers of PR & RD. 18. Learned counsel for the unofficial respondents in I.A.No.4 of 2023 also filed counter affidavit and vacate petition, wherein it is stated that there are about 200 vacancies of MPDOs available, which are meant to be filled-up by promotion and if the same are filled up as per the existing rules, the contention that the petitioners will be deprived of the opportunity of promotion is totally a misconception and untenable, in view of the law laid down by the Hon'ble Apex Court in Y.V. Rangaiah Vs. State of A.P. and constitutional judgment of the Hon'ble Supreme Court in Civil Appeal No.9746 of 2011 Dt.20.05.2022 in State of Himachal Pradesh and others Vs. Raj Kumar and others and batch. State of A.P. and constitutional judgment of the Hon'ble Supreme Court in Civil Appeal No.9746 of 2011 Dt.20.05.2022 in State of Himachal Pradesh and others Vs. Raj Kumar and others and batch. Wherein it was held that the vacancies which occurred prior to the amendment of the rules would be governed by the old rules and not by the amended rules and such rules does not reflect the correct proposition of law governing services under the Union and States and the same had been overruled. However, a rider was added stating that the rights and obligations of persons serving the Union and the States are to be sourced from the Rules governing the services. Therefore, in the State of A.P. as per the rules governing the promotions panels have to be drawn year-wise commencing from 18th September of the year onwards. Therefore, the contention of the petitioners that they will be deprived of their promotional avenues if the promotions are taken up for about 200 vacancies of MPDO doesn't hold water and runs counter to the above cited judgments of the Hon’ble Apex Court. 19. It is further stated that the post of E.O. (PR&RD) is one of the feeder categories to the promotion post of MPDO’s i.e., the post held by these proposed respondents. For the said post of E.O. (PR&RD), one of the feeder categories is Panchayat Secretary (Gr.1). Again for Panchayat Secretary (Gr.1) there are several feeder categories of Lower Grades of Panchayat Secretaries as well as VDOs etc., apart from the Junior Assistants who also can become Executive Officers (Gr.II) which was redesignated as Panchayat Secretary (Gr.1). Therefore, it can be seen that when compared to the writ petitioners who are saying that, by the time they reach the post of MPDO, they will be retiring soon, it equally applies to the proposed respondents who are holding the post of E.O. (PR&RD). As stated above, so many lower categories are merging into the post of Panchayat Secretary (Gr.I) so as to be one of the feeder categories to the post of E.O. (PR&RD). The strength of Panchayat Secretary Grade-I to VI is about 28,000, whereas, the strength of Junior Assistants / Senior Assistants who will become Administrative Officers is only about 3,000 i.e., in vulnerable position than the Administrative Officers. The strength of Panchayat Secretary Grade-I to VI is about 28,000, whereas, the strength of Junior Assistants / Senior Assistants who will become Administrative Officers is only about 3,000 i.e., in vulnerable position than the Administrative Officers. Therefore, seeking the earmarking of the posts in the 34% meant for Administrative Officers is totally unreasonable and baseless. 20. Sri M. Vijaya Kumar, learned Senior Counsel submits that the proposals and recommendations were sent by Respondent No.2 to Respondent No.1 for necessary amendments to the Rules made under G.O.Ms.No.347, dated 21.11.2001 as well as G.O.Ms.No.330, dated 28.10.2004. But, so far, amendments are not taken place, either amending or framing the rules is the domain of Respondent No.1 and same is pending for consideration. He further submits that mere non-consideration / stalling the entire promotion is detrimental not only to the unofficial respondents but also to the members of the petitioners association. He further submits that 200 vacancies are available which are meant to be filled up by promotion from the Administrative Officers as well as Executive Officers (PR&RD). 21. The contention of the petitioners that they will be deprived of their promotion, if the posts are filled up as per existing rules is totally misconception and untenable, in view of the law laid down by the Hon’ble Apex Court in Y.V.Rangaiah Vs. State of A.P., dated 20.05.2022. He further submits that the services of the petitioners are borne in the cadre of Mandal Praja Parishads and Zilla Praja Parishads which are not organized into local cadre under the Presidential Order 1975, whereas the post of Executive Officer is a Zonal Post and post of MPDO is a Multi Zonal Post. Therefore, seeking to bring the persons from unorganized cadre to organized cadre will be total breach of the provisions of Presidential Order, 1975. Hence, it is impermissible and unconstitutional; as such the present petition is liable to be dismissed. 22. The learned counsel for the other unofficial respondents in I.A.No.2 of 2023 and I.A.No.5 of 2023 adopted submissions made by the learned senior counsel. 23. Heard the submissions made by the learned counsel for the petitioner as well as learned Government Pleader for Respondents and learned counsel for the unofficial respondent. 22. The learned counsel for the other unofficial respondents in I.A.No.2 of 2023 and I.A.No.5 of 2023 adopted submissions made by the learned senior counsel. 23. Heard the submissions made by the learned counsel for the petitioner as well as learned Government Pleader for Respondents and learned counsel for the unofficial respondent. On perusal of the material placed before this Court, it appears that, as per rules framed under G.O.Ms.No.347 dated 21.11.2001 and G.O.Ms.No.330 dated 28.10.2004, posts of Administrative Officers of MPP/ZPP and Executive Officers (PR&RD) and Assistant Section Officers are the feeder category for promotions to the post of MPDO’s apart from the direct recruitment at the rate of 30%. The total MPDO posts are notified as 660 out of which, 198 (30%) posts meant for direct recruitment, 218(33%) posts are meant for Executive Officers (PR & RD), 224 (34%) posts are meant for Administrative Officers of MPP/ZPP and 20(3%) posts are meant for Assistant Section Officers. 24. It is not in dispute that while granting promotions, total posts of MPDO allotment quota is strictly followed as stated supra. It is also not in dispute that the 34% quota which is meant for Administrative Officers was not followed for granting promotions as MPDO’s. 25. It is an undisputed fact that the entire procedure for promotions was carried on to the posts of MPDO is in strict sense and in adherence to the G.O.Ms.No.347 as well as G.O.Ms.No.330. It appears that the share of Administrative Officers are very less in holding the MPDO posts on any day out of total working strength. 26. The contention of the learned counsel for the petitioners that the Administrative Officers (AO’s) have promotions at the fag end of their services, as such more number of people are retiring out of total retiring persons. Thereby, the strength of AO’s in holding MPDO posts is very less and more number of vacancies are available but the same are filling up as per the ratio mentioned above. As such the Rules in vogue for promotions should be amended on par with Revenue Services as amended vide G.O.Ms. No.1835 dated 04.11.2011 and Finance (Audit) Department vide G.O.Ms.No.187, dated 27.11.2017 and G.O.Ms.No.347, dated 21.11.2001 is a reasonable claim. 27. As such the Rules in vogue for promotions should be amended on par with Revenue Services as amended vide G.O.Ms. No.1835 dated 04.11.2011 and Finance (Audit) Department vide G.O.Ms.No.187, dated 27.11.2017 and G.O.Ms.No.347, dated 21.11.2001 is a reasonable claim. 27. The other contention of the learned counsel for the petitioners that the present 200 vacancies which are meant for promotions have arisen out of retirement of Administrative Officers only but promotions to be taken up as per Ratio only. If these 200 vacancies are filled-up as per the existing rules, again, the Executive officers (PR&RD) will get 100 posts, thereby the total strength of the Executive officers (PR&RD) will become more than 300 against their quota of 218 and this aspect has also to be considered in view of the real statistics. 28. The contention of the learned Government Pleader for the Respondents that no injustice is being meted out to the Administrative Officers and as per the existing rules 34% of the vacancies are strictly filled-up from the category of Administrative Officers out of the vacancies of MPDO is valid and sustainable, since there is no dispute in implementation of the ratio. 29. The other contention of the learned Government Pleader for Respondents that in respect of two departments i.e. Revenue and Finance Departments, the service rules for promotions were amended in filling vacancies by promotions in substantive vacancies as per their entitlement quota from respective feeder category is acceptable, equitable and also liable to be upheld. 30. The other contention of the learned counsel for the unofficial respondents that as per the existing rules the unofficial respondents are eligible for promotion but their right to promotion cannot be deprived of, by stalling the entire process, by anticipating for amendments of Rules in respect of one feeder category and in the absence of any complaint is strictly adherence to the rules in vogue, in promotions in respect of all the feeder categories is also to be upheld. 31. 31. The other contention of the counsel for the unofficial respondents that stalling the entire promotions is also detrimental to the unofficial respondents and also to the petitioners and other members / Administrative Officers on the guise that new rules should be brought by way of amendment which is prerogative Right of Respondent No.1 is valid and acceptable in view of power of amending Rules is the domain of the State, it will take much time till then stalling of promotions is either way detrimental to the petitioners as well as unofficial respondents and also against the public interest due to administrative exigencies. 32. For the reasons stated above, the existing vacancies which are meant for the promotees should be proceeded as per the existing rules in vogue or if Respondent No.1 considered the recommendations of Respondent Nos.2 and 3, dated 08.09.2022 as well as 03.03.2020 and can be amended the rules. The Respondents may go on entire exercise of promotions basing upon the new rules. 33. In view of the foregoing discussion, the present writ petition is disposed of directing Respondent No.1 to consider the letter addressed by Respondent Nos.2 and 3 dated 08.09.2022 as well as 03.03.2020 and also representation of the petitioners association dated 10.06.2022 and pass appropriate orders within a period of four months with reference to the Rules framed in respect of Departments of Revenue as well as Finance as stated supra, from the date of receipt of copy of this order. No order as to costs. 34. As a sequel thereto, interlocutory applications pending, if any in the writ petition, shall also stand closed.