Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 488 (AP)

S. G. M. K. Naga Baji v. State of Andhra Pradesh

2023-03-02

M.GANGA RAO, V.SRINIVAS

body2023
ORDER : 1. In these two writ petitions the cause of action, facts and issue raised are one and the same. Hence, both the writ petitions were heard together and are being disposed of by this common order. 2. The lis revolves around the fixation of seniority between SGMK Naga Baji (petitioner in W.P. No. 27053 of 2014 and 4th respondent in W.P. No. 942 of 2019) and CHVRK Sastry (petitioner in W.P. No. 942 of 2019 and 4th respondent in W.P. No. 27053 of 2014). 3. The petitioners in these writ petitions will hereinafter be referred to with their names viz. SGMK Naga Baji and CHVRK Sastry, for the sake of clarity and convenience. 4. The facts, in brief, are that CHVRK Sastry was appointed on compassionate grounds as a Typist vide proceedings dated 10.12.1996 and joined duty as Typist on Forenoon of 12.12.1996. He has to acquire the qualification of Typewriting Telugu lower grade within a period of two years from the date of appointment order and on acquiring the said qualification, his services were regularised w.e.f. 12.12.1996 i.e. from the date of joining as a typist vide proceedings dated 17.12.1998. Based on the integrated seniority list of Junior Assistants/Junior Stenos/typists of Kakinada Nodal Division, he was promoted as a Junior Assistant on 12.12.1996 and thereafter as Senior Assistant on 23.11.2011 and working in Nodal unit of East Godavari District. The integrated seniority list of Junior Assistants/Junior steno-typist/typists of erstwhile Kakinada Nodal division comprising of East and West Godavari districts for the period from 01.05.1994 to 31.12.2003 was prepared taking the service of CHVRK Sastry w.e.f. 12.12.1996 in terms of G.O.Ms. No. 60 dated 11.02.1997 whereas the SGMK Naga Baji was appointed as an Attender on 09.08.1996, under medical invalidation scheme, as his father took voluntary retirement on medical grounds. Later, by proceedings, dated 19.07.2010, SGMK Naga Baji was appointed as a Junior Assistant from date of his initial appointment as Attender with notional seniority. The said proceedings are challenged by CHVRK Sastry by filing O.A. No. 9103 of 2021 as it would affect his seniority in the cadre of Junior Assistant. The said OA was allowed by order dated 15.07.2014, against which SGMK Naga Baji filed W.P. No. 27053 of 2014. The said proceedings are challenged by CHVRK Sastry by filing O.A. No. 9103 of 2021 as it would affect his seniority in the cadre of Junior Assistant. The said OA was allowed by order dated 15.07.2014, against which SGMK Naga Baji filed W.P. No. 27053 of 2014. In the said writ petition, this court on 04.08.2015 while ordering notice in the writ petition ordered WPMP No. 33826 of 2014 as follows: “status quo existing as of now with regard to the position held by the petitioner, be maintained.” Pending the said writ petition, SGMK Naga Baji, filed O.A. No. 5202 of 2015 before the APAT to extend the benefit of G.O.Ms. No. 151 (GAD Ser-G) dated 22.06.2004 to him. By the said G.O.Ms. No. 151, an amendment was made to GOMs. No. 60 dated 11.02.1997. Pending O.A. No. 5202 of 2015, an order is passed on 09.09.2015 to consider the representation of SGMK Naga Baji dated 31.07.2015 and pass appropriate orders keeping in view GOMs. No. 151 dated 22.06.2004. Pursuant to the said interim order, the 3rd respondent by proceedings dated 07.12.2017, after considering the objections, re-fixed the seniority revising the integrated seniority list of CHVRK Sastry at serial No. 752 of the Junior Assistants relating to Kakinada Nodal division for the period from 01.05.1994 to 31.12.2005 against which it is stated an appeal lies to the Commissioner of Commercial Taxes, Vijayawada, within 30 days from the date of the said order. When CHVRK Sastry filed vacate M.P. No. 573 of 2016 in O.A. No. 5202 of 2015, SGMK Naga Baji got dismissed the OA as withdrawn on 25.04.2018. Questioning the proceedings dated 07.12.2017 CHVRK Sastry filed O.A. No. 1255 of 2018. The said OA was dismissed on 30.07.2018 stating that said OA was filed without availing the effective alternative remedy of appeal under Rule 26 of the AP State and Subordinate Service Rules, 1996. Hence, W.P. No. 942 of 2019 has been filed challenging the proceedings dated 07.12.2017. 5. The points that arise for consideration before this Court are: (1) Whether the Memo No. 10554/CT.III.2/2010-2, dated 19.07.2010, directing to give notional seniority to SGMK Naga Baji in the cadre of Junior Assistant from the date of his first appointment as attender, under Medical Invalidation scheme is valid? 5. The points that arise for consideration before this Court are: (1) Whether the Memo No. 10554/CT.III.2/2010-2, dated 19.07.2010, directing to give notional seniority to SGMK Naga Baji in the cadre of Junior Assistant from the date of his first appointment as attender, under Medical Invalidation scheme is valid? (2) Whether the proceedings dated 07.12.2017 revising the integrated seniority list of Junior Assistants relating to Kakinada Nodal Division for the period from 01.05.1994 to 31.12.2003, is valid as per the Rules? 6. POINT No. 1: Sri Siva, learned counsel appearing for SGMK Naga Baji submits that SGMK Naga Baji was appointed as attender on 09.08.1996 inspite of the fact that Junior Assistant vacancies are available at that time and he is having qualification to be appointed as a Junior Assistant as per Ministerial service rules, i.e. intermediate qualification, for appointment. Subsequently two other persons were appointed as Junior Assistants. The Government by way of Memo dated 19.07.2010 rightly set-right the error committed by it while appointing SGMK Naga Baji as attender and to remove the discrimination meted to him and accordingly appointed him as a Junior Assistant notionally from the date of his first appointment as Attender. Fixing the notional seniority of Nagabaji as a Junior Assistant instead of attender and from the date of his initial appointment as attender w.e.f. 09.08.1996 and fixed his seniority at the appropriate place in the cadre of junior assistant does not suffer from infirmity which warrant interference by the Tribunal by passing orders in O.A. No. 9103 dated 15.11.2014. SGMK Naga Baji was appointed as an Attender under medical invalidation scheme, on 09.08.1996. On the representation of SGMK Naga Baji, by memo dated 19.07.2010 the Government directed the Commissioner of Commercial Taxes, Hyderabad to give notional seniority to SGMK Nagabaji in the cadre of Junior Assistant from the date of his first appointment as attender i.e. w.e.f. 09.08.1996 and fix his seniority at the appropriate place in the cadre of Junior Assistant. Questioning the same, CHVRK Sastry filed O.A. No. 9103 of 2011 on the ground that as on the date of appointing SGMK Naga Baji as attender number of Junior Assistant posts are available and subsequent to him also two other individuals were appointed as Junior Assistants on compassionate grounds in the year 1997. Questioning the same, CHVRK Sastry filed O.A. No. 9103 of 2011 on the ground that as on the date of appointing SGMK Naga Baji as attender number of Junior Assistant posts are available and subsequent to him also two other individuals were appointed as Junior Assistants on compassionate grounds in the year 1997. In fact the Commissioner of Commercial Taxes, AP, Hyderabad earlier rejected his representation to appoint him as a Junior Assistant as the Commissioner is the appointing authority. The Tribunal, after considering the rival contentions, framed an issue whether the official respondents are justified in converting the appointment of SGMK Naga Baji as Junior Assistant right from his initial appointment as attender on 09.08.1996 to the detriment of CHVRK Sastry and other similarly situated persons. SGMK Naga Baji once having submitted application for appointment under medical invalidation scheme and got appointed as attender and joined as attender without raising any grievance with regard to his appointment as attender before any appropriate authority he cannot re-exercise his option by way of representation for appointment as a Junior Assistant, after lapse of 13 years and relied upon the decision in I.G. [Karmik vs. Prahalad Mani Tripathi, 2007 (4) Laws (SC) 159]. The Tribunal holding that initially SGMK Naga Baji was appointed as attender having accepted the post of attender joined in the post he has no right to claim that his services should be regularised in the post of Junior Assistant from the date of his initial appointment as attender. There is inordinate delay in approaching the authorities also. In the meantime, vested rights are created in favour of CHVRK Sastry and similarly situated persons. Therefore, ignoring their rights, Government ought not to have issued the impugned proceedings converting SGMK Nagabaji as Junior Assistant from the date of initial appointment as Attender in the year 1996 and accordingly held that the impugned proceedings is bad in law and liable to be set aside and accordingly set aside. This Court also finds that appointment of Nagabaji by memo dated 19.07.2010 as Junior Assistant from the date of his initial appointment as attender w.e.f. 09.08.1996 and fixed his seniority at the appropriate place in the cadre of junior assistant suffers from infirmity and the Tribunal has rightly interfered with the same in O.A. No. 9103 of 2018 by orders dated 15.11.2014. This Court finds that appointment of Nagabaji by memo dated 19.07.2010 as Junior Assistant from the date of his initial appointment as attender is not supported by rule position or provision of law. The Tribunal had rightly set aside the memo dated 19.07.2010. We do not see any grounds in W.P. No. 27053 of 2014 warranting interference with the order passed by the Tribunal and SGMK Naga Baji is not entitled for appointment as a Junior Assistant from the date of his initial appointment as attender on notional fixation of his seniority in the cadre of Junior Assistant. The point is accordingly answered. W.P. No. 27053 of 2014 is devoid of merits and liable to be dismissed. 7. POINT No. 2: Sri MVS Sarma, learned counsel appearing for CHVRK Sastry would contend that the Deputy Commissioner, Commercial Taxes, Kakinada ought not to have revised the seniority list regularising CHVRK Sastry as Attender from 12.12.1996 by following the memo dated 19.06.2015 as was done in the case of Smt B. Laxmi Bala Koteswari, ACTO of Vijayawada by applying GOMs. No. 151 retrospectively. At best GOMs. No. 151 operates from the date of its issuance i.e. 22.06.2004. Revising the seniority of CHVRK Sastry and other junior assistants on the representation of SGMK Naga Baji under the guise of interim orders passed in O.A. No. 5202 of 2015 dated 09.09.2015 subsequently on filing VMA 573 of 2016 by Sastry the OA was dismissed as withdrawn. In W.P. No. 27053 of 2014 filed by Naga baji against the order passed in O.A. No. 9103 of 2011 dated 17.03.2018 there was an order of status quo. When the matter is sub-judice before this Court in W.P. No. 27053 of 2014 the Deputy Commissioner, 3rd respondent, ought not to have revised the seniority list by order dated 07.12.2017. Initially, CHVRK Sastry was appointed as typist of compassionate grounds on 10.12.1996 and joined duty as typist on forenoon of 12.12.1996. His services were regularised by proceedings dated 17.12.1998 w.e.f. 12.12.1996 as per GOMs. No. 60 dated 11.02.1997. The same could not be altered under the guise of interim orders passed in O.A. No. 5202 of 2015 dated 09.09.2015, considering the representation of Nagabaji dated 31.07.2015 by implementing GOMs. No. 151 dated 22.06.2004 stating that Sastry services as Typist needs to be regularised from the date of acquiring the qualification as per GOMs. No. 151 dated 22.06.2004. The same could not be altered under the guise of interim orders passed in O.A. No. 5202 of 2015 dated 09.09.2015, considering the representation of Nagabaji dated 31.07.2015 by implementing GOMs. No. 151 dated 22.06.2004 stating that Sastry services as Typist needs to be regularised from the date of acquiring the qualification as per GOMs. No. 151 dated 22.06.2004. The services of a person who was appointed to a post on condition to acquire the requisite qualification for the post to which the person appointed, has to be regularized, on the person acquiring the requisite qualification within the prescribed period, has to be regularized from the date of initial appointment but not acquiring requisite qualification. A perusal of G.O.Ms. No. 151 dated 22.06.2004 discloses that it is an amendment to G.O.Ms. No. 60, dated 11.02.1997 by substituting the words ‘from the date of initial appointment’ to ‘from the date of acquiring such qualification fully’. As per the existing rules as on the date of CHVRK Sastry’s appointment as Typist in 1996, GOMs. No. 60 dated 11.02.1997, which states that on acquiring qualifications within a period of two years, the services of the person in the post appointed is to be regularised from the date of initial appointment. The authorities initially having done the same and thereafter when the matter is sub-judice before this Court, pursuant to the interim orders passed by the Tribunal revised the integrated the seniority of CHVRK Sastry and fixed the seniority of CHVRK Sastry at S. No. 752 showing Sastry as a junior to Nagabaji in the cadre of Junior Assistants and depriving his further promotion is found to be illegal and arbitrary exercise of power to benefit SGMK Naga Baji. Hence, contra contentions of learned Government Pleader holds no water. 8. For the aforesaid reasons, W.P. No. 942 of 2019 is allowed setting aside the proceedings dated 07.12.2017 of the Deputy Commissioner (CT). Accordingly, respondents are directed to restore the integrated seniority list of the junior assistants prepared vide memo dated 19.07.2010. W.P. No. 27053 of 2014 is dismissed. 9. There shall be no order as to costs. 10. As a sequel, pending miscellaneous applications, if any, shall stand closed.