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2023 DIGILAW 292 (AP)

P. Nageswarareddy v. Government Of Andhra Pradesh

2023-02-03

K.MANMADHA RAO

body2023
ORDER : This petition is filed under Article 226 of the Constitution of India for the following relief:- “…to (a) quash the impugned order in Memo No 235/A/A1/2015-2016, dated 20.02.2016 passed by the 1st respondent (b) direct the respondents to finalize year wise panels for promotion as deputy Director for the panel years 2008-09 and 2009-10 (c) direct the respondents to promote the applicant as Deputy Director from the panel year 2008-09 (d) direct the respondents to fix the pay of applicant in the post of deputy Director and pay the arrears (e) direct the respondents to submit revised pension proposals based on the pay fixed in the cadre of the Dy.Director and consequential terminal benefits such as encashment of earned leave, Gratuity and commutation of pension etc. (f) direct respondents to pay costs of the application to the petitioner and pass such other order or orders…….” 2. Brief facts of the case are that initially the petitioner was appointed as Typist and was promoted as Superintendent and further to the post of Backward Classes Welfare Officer. He was fully qualified for promotion as Deputy Director, B.C. Welfare Department, but before he was so promoted, he retired from service on the AN of 30.6.2010 as Special Officer, AP Commission for B.Cs, Hyderabad, which is equivalent to the post of Deputy Director, B.C. Welfare. The Government in G.O.Ms.No.106 SW (B) Department, dated 19.10.1983 bifurcated the Social Welfare Department into three viz., (1) Social Welfare (2) B.C Welfare and (3) Tribal Welfare. The employees were allotted to the above three departments. The petitioner was allotted to B.C. Welfare Department. It is further stated that a DPC was held in B.C Welfare Department for the promotion of D.B.C.WOs as Dy. Directors during the panel year 2007-2008. The name of the petitioner was approved in that DPC for promotion as Dy. Director in G.O.Ms.No.38 B.C. Welfare (A) Dept dated 7.8.2008. but due to personal and family reasons, the petitioner was not in a position to accept the promotion and requested to omit him from the promotion for the panel year 2007-2008. Accordingly, the petitioner’s name was omitted. No DPC was conducted during the panel year 2008-2009 stating that no vacancies were existed to fill up by promotion. Thus the petitioner was denied an opportunity of being promoted as Dy. Director for precious year. Accordingly, the petitioner’s name was omitted. No DPC was conducted during the panel year 2008-2009 stating that no vacancies were existed to fill up by promotion. Thus the petitioner was denied an opportunity of being promoted as Dy. Director for precious year. Thereafter, the 2nd respondent has issued proposals for conducting DPC for the panel year 2009-2010 and in the said proposals, the petitioner name was mentioned. However, no DPC was conducted till retirement of the petitioner on 30.06.2010. It is further stated that before the retirement of the petitioner fresh proposals were submitted vide Rc.A/3468/2008, dated 11.06.2010 and Rc.No.A3/5654/2007 dated 17.06.2010 including the name of one Sri Y. Prabhakara Rao, a non-departmental employee above the petitioner in the panel year was promoted as Dy. Director. While the matter stood thus, the petitioner has submitted a representation dated 11.3.2011 stating that though vacancies exited for the panel year 2008-09 but the DPC was not conducted till his retirement and hence he was wrongfully denied promotion as Dy. Director. Thereafter, the 1st respondent issued Memo No.907/A2/2011-1 dated 14.3.2011 requested the 2nd respondent to submit his remarks vide Rc.No.A3/3224/2011, dated 18.5.2011 contending that the petitioner has declined promotion during the panel year 2007-08 that DPC during the panel year 2008-09 could not be held, and that DPC for the panel year 2009-10 was held in July 2010 in that Sri Y.Prabhakar Rao was promoted who was below the petitioner. Even if he was not retired from service at the time of DPC he will not get his promotion as there was only one vacancy of Dy.Director available then. Non conducting of DPC for 2008-09 even though vacancy exists cannot be attributed to the petitioner. Viewed from any angle, the regularization of Sri Y Prabhakara Rao in B.C Welfare Department and placing him over and above her petitioner is illegal and arbitrary. Hence the present writ petition has been filed. 3. The counter affidavit has been filed by the 1st respondent denying all the allegations made in the petition and contended that in fact the name of the petitioner was approved in the DPC for the year 2007-08 for promotion as Deputy Director in G.O.Ms.No.38 Backward Classes Welfare (A) Department, dated 7.8.2008. But the petitioner has declined his promotion due to his personal and family reasons and also requested to omit his name from the promotion list for the panel year 2007-2008. But the petitioner has declined his promotion due to his personal and family reasons and also requested to omit his name from the promotion list for the panel year 2007-2008. Accordingly, the Government ahs considered the request of the petitioner for omitting his name from the approved panel year 2007-08 vide Memo No.3404/A/2007, Backward Classes Welfare (AT) Department, dated 23.08.2008. it is further stated that on examining the proposals, the Government have requested the Director, BCW to furnish some more information relating to DPC for 2008-09 and for which the required information was submitted to Government. But due to administrative reasons, the DPC for 208-09 could not be conducted. It is also a fact that proposals were received vide letter Rc.No.A/3468/2008, dated 11.6.2010 and A3/5654/2007, dated 17.6.2010 duly including another name of Sri Y. Prabhakar Rao who is senior to the petitioner. Accordingly, the Government have conducted DPC for 2009-10 and finalized promotions to the post of Dy. Director and issued orders vide G.O.Ms.No.22, dated 25.8.2010 to (1) Sri Y Prabhakar Rao, Smt S.K. Annapurna and Sri K. Sanjay Prabhakar. It is further stated that as on the date of issue of Government Orders with regard to DPC for 2009-10, the petitioner was already retired from Government service on 30.06.2010. The Government vide Memo No.907/A2/2011- 3, dated 25.8.2011 has informed that as per the instructions issued in Circular Memo No.10445/Ser- D/2011, G.A (Ser.D) Department, dated 1.6.2011 it was clarified that as per rule 11(b) of A.P. State and Subordinate Service Rules, 1996 as amended vide G.O.Ms.No.145 G.A. (Ser.D) Department, dated 15.6.2004. 4. Heard Mr.Santhapur Satyanarayana Rao, learned counsel appearing for the petitioner and learned Government Pleader for Services-II appearing for the respondents. 5. During hearing, learned counsel for the petitioner while reiterating the averments made in the petition contended that though vacancies existed, DPC was not conducted during the panel year 2009-10 till the retirement of the petitioner he was wrongfully denied promotion as Dy. Director. 5. During hearing, learned counsel for the petitioner while reiterating the averments made in the petition contended that though vacancies existed, DPC was not conducted during the panel year 2009-10 till the retirement of the petitioner he was wrongfully denied promotion as Dy. Director. He also stated that the Central Administrative Tribunal while disposing of A No.2480/2009 held that “right to be considered for promotion on fair and equitable basis has been ruled to be a fundamental right guaranteed to a Government servant by the Hon’ble Supreme Court reported in Gopichand Vishnoi Versus State of Uttar Pradesh, (2006) 9 SCC 694 , wherein the Apex Court ruled that where promotion was wrongly denied to a Government servant who retired on superannuation, the same has to be operated retrospectively post retirement and requested to promote the petitioner as Dy. Director in the panel year 2008-09 with consequential benefits and revised pensioanry benefits with arrears as ordered by the CAT in OA No.2480/2009. 6. He further submitted that in fact Sri Y Prabhakar Rao is not an employee of B.C Welfare department. He was working on deputation only in BC Welfare department. His name does not find a place in any of the seniority lists of BCW Department in any cadre. He further submitted that Rule 35 of A.P. State and Subordinate Service Rules 1996 governs the field of fixing seniority in case of request transfer or on administrative grounds from one unit of appoint to other. Adverting to that Rule, the seniority of a person who is transferred on administrative grounds shall be determined with reference to date of seniority in the former unit and at request from the date of joining duty in the later unit of appointment. So, the transfer of Sri Y Prabhakara Rao can be termed as administrative grounds as he was not allotted to BC Welfare department by Trifurcation Committee. Even if he is taken to the BCWD his seniority has to be fixed from the date of his joining i.e., 3.6.2010 or placed after approved departmental candidate in the cadre. By no stretch of imagination, Sri Y Prabhakar Rao cannot be placed above the petitioner. Even if he is taken to the BCWD his seniority has to be fixed from the date of his joining i.e., 3.6.2010 or placed after approved departmental candidate in the cadre. By no stretch of imagination, Sri Y Prabhakar Rao cannot be placed above the petitioner. He also argued that when the seniority of an employee is likely to be affected, a notice shall be issued to him affording an opportunity to submit his objections if any, contrary to it the respondents in fast haste included the name of Sri Y Prabhakar Rao by satisfying themselves by giving information over cell phone/e mail. It clearly amplifies the undue interest shown by the respondents towards non-departmental employee i.e, Sri Y. Prabhakara Rao in regularizing his services and fixing his seniority. 7. On the other hand, learned Government Pleader while reiterating the averments made in the counter, contended that in the instant case, the petitioner relinquished his promotion for the panel year 2007-08, and panel for the next panel year i.e., 2008-09 was not prepared since the post of Assistant Secretary, A.P. Commission for BCs does not fall within the sanctioned cadre strength of Deputy Directors of Backward Classes Welfare Department and also administrative reasons and therefore, the question of denying promotion does not arise. However, in 2009-10 panel year DPC was held in July 2010 and Sri Y. Prabhakara Rao’s name came first in seniority and the petitioner was placed below. Since there was only one vacancy Sri Y. Prabhakara Rao was promoted. However, the petitioner had retired one month before conducting of the DPC. Even if the petitioner was not retired from service at the time of the DPC, he could not be get his promotion as there was only one vacancy of Deputy Director. Therefore, the request of the petitioner for promotion to the cadre of Deputy Director in the panel year 2008-09 has been examined in detailed and rejected his claim vide Memo No.907/A2/2011-3, dated 25.8.2011 and vide Govt. Memo No.235/A/A1/2015-2, dated 20.02.2016. 8. Therefore, the request of the petitioner for promotion to the cadre of Deputy Director in the panel year 2008-09 has been examined in detailed and rejected his claim vide Memo No.907/A2/2011-3, dated 25.8.2011 and vide Govt. Memo No.235/A/A1/2015-2, dated 20.02.2016. 8. In a case of Vinod Kumar Sangal vs Union of India and others, (1995) 4 SCC 246 , wherein the Hon’ble Supreme Court held that: where the DPC is unable to meet on regular intervals for reasons beyond control the first DPC that meets thereafter shall determine the actual number of regular vacancies that arose in each of the previous year/years and the actual number of regular vacancies proposed to be filled in the current year separately and consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards and prepare a selection list for each of the years starting with the earliest year onwards and on that basis prepare a consolidated select list by placing the select list of the earlier year above the one for the next and so on. In another judgment reported in Hemraj Singh Chauhan and others vs. Union of India, Civil Appeal No.2651-52 of 2010 dated 23.3.2010, wherein the Hon’ble Apex Court held that : the Selection Committee shall meet at an interval not exceeding one year and prepare a list of members who are eligible for promotion under the list. The Court held that this was mandatory in nature. Further, it clearly held that unless there is a very good reason for not doing so, the Selection Committee shall meet every year for making selection. And also held that the employees cannot be made in any way responsible for the delay in conducting the DPCs. In para-38 and 47 of the above judgment, it was held that : 38. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution. 47. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution. 47. ".......since preparation of the select list is the foundation for promotion and its omission impinges upon the legitimate expectation of promotee officers for consideration of their claim for promotion as IPS officers, the preparation of the select list must be construed to be mandatory. The Committee should, therefore, meet every year and prepare the select list and be reviewed and revised from time to time as exigencies demand." 9. This Court observed that as per decision of Hon’ble Supreme Court reported in Gopichand Vishnoi’s case (supra 1), has ruled that if the promotion has been denied wrongly to a Government servant, who retired on superannuation, the same has to be operated retrospectively post-retirement. It is also observed in a decision of Hon’ble Apex Court reported in P.N Premachandran Vs state of Kerala and others, Civil appeal No.4100/1998, dated 6.11.2003, wherein it was held that “promotion has to be accrued to a person from the date the vacancy has accrued for which no DPC has been held is not a fault attributable to them and this has been denied to the petitioners without a proper opportunity to be considered fairly at the right time before retirement, deprivation of promotion is a denial of their fundamental right”. 10. On perusing the material available on record, this court further observed that the Government or the appointing authority may order for the review of the proceedings of the DPC on account of some mistake or error apparent on the face of the record, or on account of a factual error substantially affecting the decision of the DPC or for any other sufficient reasons i.e., change in seniority, wrong determination of vacancies, or where adverse entries in the Confidential reports of an individual are expunged or toned down or a punishment inflicted on him has to be set aside or reduced. Hence, viewed from any angle, the action of the respondents in not preparing year-wise panels for the purpose of promotion to the posts of Deputy Directors in the existing vacancies of respective panel years as illegal. Hence, viewed from any angle, the action of the respondents in not preparing year-wise panels for the purpose of promotion to the posts of Deputy Directors in the existing vacancies of respective panel years as illegal. 11. Therefore, in view of the foregoing discussion, this Court is of the considered opinion that, while declaring the impugned proceedings issued by the respondents vide Memo No.907/A2/2011-3, dated 25.8.2011 and vide Govt. Memo No.235/A/A1/2015-2, dated 20.02.2016 as illegal, directing the respondents, if the juniors to the petitioners were promoted and if they extended notional seniority in respective panel years during which they are entitled to be promoted in the existing vacancies, the petitioner shall be extended the same benefit of extending monetary benefit in the pension by refixing the same. 12. Accordingly, the impugned proceedings issued by the respondents vide Memo No.907/A2/2011-3, dated 25.8.2011 and vide Govt. Memo No.235/A/A1/2015-2, dated 20.02.2016 are hereby set aside. Further the respondents are directed to finalize the year wise panels for promotion as Deputy Director for the panel years 2008-09 and 2009-10 and directed to promote the respondents as Dy. Director form the panel year 2008-09 and fix the pay of petitioner in the same post and also pay the consequential benefits such as gratuity and commutation of pension etc. The entire exercise shall be completed within eight (08) weeks from the date of receipt of a copy of this order. 13. With the above direction, the Writ Petition is disposed of. There shall be no order as to costs. As a sequel, all the pending miscellaneous applications shall stand closed.