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2023 DIGILAW 556 (AP)

B. Lalitheswara Rao, S/o. B. Manikyala Rao v. state of Andhra Pradesh, Rep: by its Principal Secretary to Government

2023-03-16

SUBBA REDDY SATTI

body2023
ORDER : 1. The Writ Petition is filed seeking issuance of Writ of Mandamus declaring the order passed by the 2nd respondent in Rc.No.6177/2019/E2 dated 05.10.2019, rejecting promotion of the petitioner to the post of Electrician Grade-II, as illegal, arbitrary and violation of Article 14, 16 and 21 of the Constitution of India and consequently declare that the petitioner is entitled for promotion to the post of Electrician Grade –II from the date of his eligibility as against the existing three (03) vacancies with all consequential benefits. 2. The case of the petitioner, in brief, is that he was appointed as Electrical Helper on 22.08.2008 on compassionate grounds. Petitioner’s probation was declared. Next promotion is Electrician Grade-II. Petitioner passed Wire Men Test. Andhra Pradesh Electrical Licensing Board issued certificate in the year 1997. With the Wire Men Certificate Sri V.D.Rajendra Prasad, Sri B.L.Mohan Rao and Sri P.Chinnaji Rao were promoted to Electrician Grade-II. Petitioner made a representation, dated 09.11.2018. Since his representation, dated 09.11.2018 was not considered for promotion, petitioner filed W.P. No.11605 of 2019 seeking direction to the respondents to consider his representation. However, without considering the representation properly 2nd respondent passed the order and hence writ petition was filed. The said writ petition was disposed of on 20.08.2019. While disposing of the writ petition, this Court directed respondents to consider the representation. However, since the respondent authorities failed to consider the representation as per the direction of the order of the Court and passed orders, the above writ petition was filed. 3. Counter affidavit was filed on behalf of 2nd respondent. In the counter affidavit, it was contended that Sri B.Rajendra Prasad, Electrical Helper, Sri B.L.Mohan Rao and Sri P.Chinnaji Rao, Gang Mazdoor of Engineering Section were promoted as Electrician Grade-II contrary to the rules and regulations. 4. Petitioner submitted representation, to the Commissioner/2nd respondent on 29.05.2018 and 09.11.2018 seeking promotion to the post of Electrician Grade-II. The Commissioner/2nd Respondent upon receiving representations of the petitioner addressed a letter to Secretary, Andhra Pradesh Electrical Licensing Board of A.P., Guntur, seeking clarification as to whether the petitioner is eligible for promotion of Grade-II Electrician with the qualification of Wire Men Certificate. However, the Secretary of Andhra Pradesh Electrical Licensing Board has not clarified the same. 5. The Commissioner/2nd Respondent upon receiving representations of the petitioner addressed a letter to Secretary, Andhra Pradesh Electrical Licensing Board of A.P., Guntur, seeking clarification as to whether the petitioner is eligible for promotion of Grade-II Electrician with the qualification of Wire Men Certificate. However, the Secretary of Andhra Pradesh Electrical Licensing Board has not clarified the same. 5. Earlier promotions of 3 persons were affected by violating rules and regulations particularly the terms and conditions laid down vide G.O.Ms.No.107, Public Works (LLJ) Department, dated 07.02.1974. There is no illegality in the order impugned. Eventually, prayed to dismiss the writ petition. 6. Heard Sri P.V.Ramana, learned counsel for the petitioner and Sri K.Sridhar Murthy, learned Standing Counsel appearing for 2nd & 3rd respondents, learned Government Pleader for Municipal Administration Urban Development appearing for 1st & 4th respondents. 7. Learned counsel for the petitioner would contend that petitioner filed W.P.No.11605 of 2019 questioning inaction of the respondents in not considering petitioner’s representation, dated 09.11.2018 to consider his case for promotion to the post of Electrician Grade-II. Writ petition was disposed of by order dated 20.08.2019 directing respondent No.2 to consider petitioner’s representation within a period of three (03) weeks from the date of receipt of a copy of the order. Learned counsel also would submit that commissioner/2nd respondent rejected the representation without meeting or considering all the averments in the representation. Learned counsel would also submit that there are no Rules in Municipal Service for filling up the post of Electrician Grade-II. Learned counsel pointed out that G.O.Ms.No.107, Public Works (LLJ) Department, dated 07.02.1974 has no application. 8. Sri K.Sreedhar Murthy, learned Standing Counsel would contend that three persons whose names were mentioned by the petitioner were promoted against rules on earlier occasion. He would further submit that illegality committed at one point of time cannot be perpetuated. He also would submit that G.O.Ms.No.107, Public Works (LLJ) Department, dated 07.04.1974 would apply to the facts of the case. He submits that as per said G.O., a person must possess trade certificate in Electrical Trade. Since, petitioner did not have the certificate, his case was rejected and accordingly order was passed by the Commissioner/2nd respondent. 9. The point to be considered is whether the order passed by the Commissioner/2nd respondent impugned in petition, vide Rc.No.6177/2019/E2 dated 05.10.2019 is in consonance with the orders passed on 20.08.2019 in W.P. No.11605 of 2019? 10. Since, petitioner did not have the certificate, his case was rejected and accordingly order was passed by the Commissioner/2nd respondent. 9. The point to be considered is whether the order passed by the Commissioner/2nd respondent impugned in petition, vide Rc.No.6177/2019/E2 dated 05.10.2019 is in consonance with the orders passed on 20.08.2019 in W.P. No.11605 of 2019? 10. Petitioner was appointed as Electrical Helper on 22.08.2008 on compassionate grounds in the 2nd respondent/Corporation. His probation was also declared. Petitioner, as soon as completion of 10 years of service, made a representation for considering him to next promotion i.e., Electrician Grade-II. Petitioner’s version is that earlier, three persons by name Sri V.D.Rajendra Prasad, Sri B.L.Mohan Rao and Sri P.Chinnaji Rao, similar to petitioner, were promoted. According to the petitioner, he possesses Wire Men Test Certificate issued by Andhra Pradesh Electrical Licensing Board, as such he is eligible for promotion. 11. Since the case of the petitioner’s representation was not considered, petitioner filed W.P. No. 11605 of 2019. While disposing the writ petition, this Court observed as follows: “Hence, in the above circumstances, the 1st respondent is directed to consider the representation of the petitioner dated 09.11.2018 and to pass appropriate orders within a period of three weeks from the date of receipt of copy of the order”. 12. Representation dated 09.11.2018 made by the petitioner seeking promotion would disclose that he was qualified in Wire Men Test conducted by Andhra Pradesh Electrical Licensing Board in July, 2017 and also with regard to certificate obtained from on 28.02.2018. Representation further discloses that three persons referred supra were promoted and copy of their proceedings is also annexed to the representation. 13. It is specifically mentioned in Para No.4 (A) of the writ affidavit that there are no rules in Municipal services to fill up the post of Electrician Grade-II. Counter affidavit filed on behalf of the 2nd respondent does not indicate with regard to adoption of G.O.Ms. No.107 or any other Rules from Public Works to the Corporation regarding Electrical works and no material in this regard, is filed along with the counter. Unless, relevant material is placed before this Court, substantiating adoption of G.O.Ms.No.107, this Court cannot rely upon the averments in the counter regarding application of G.O.Ms.No.107, to petitioner’s case. 14. No.107 or any other Rules from Public Works to the Corporation regarding Electrical works and no material in this regard, is filed along with the counter. Unless, relevant material is placed before this Court, substantiating adoption of G.O.Ms.No.107, this Court cannot rely upon the averments in the counter regarding application of G.O.Ms.No.107, to petitioner’s case. 14. Earlier, when petitioner approached this Court by filing W.P.No.11065 of 2019, a direction was given to the authorities to consider petitioner’s representation. The word ‘consider’ means to think over. 15. The words ‘consider’ was analyzed by the Hon’ble Supreme Court in Chairman Life Insurance Corporation of India & Ors v. A Masilamani, (2013) 6 SCC 530 , and held thus: “19. The word "consider" is of great significance. The dictionary meaning of the same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order.” 16. In State of Andhra Pradesh Vs. G.Sreenivas Reddy & Ors., 2006 (3) SCC 674 , Hon’ble Apex Court observed as follows. We may, in this context, examine the significance and meaning of a direction given by the court to "consider" a case. When a court directs an authority to 'consider', it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. There is a reason for a large number of writ petitions filed in High Courts being disposed of with a direction to "consider" the claim/case/representation of the petitioner/s in the writ petitions. 1) Where an order or action of the State or an authority is found to be illegal, or in contravention of prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. 1) Where an order or action of the State or an authority is found to be illegal, or in contravention of prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. When the High Court finds that the order or action requires interference and exercises the power of judicial review, thereby resulting in the action/order of the State or authority being quashed, the High Court will not proceed to substitute its own decision in the matter, as that will amount to exercising appellate power, but require the authority to 'consider' and decide the matter again. The power of judicial review under Article 226 concentrates and lays emphasis on the decision making process, rather than the decision itself. 2) The High Courts also direct authorities to 'consider', in a different category of cases. Where an authority vested with the power to decide a matter, fails to do so in spite of a request, the person aggrieved approaches the High Court, which in exercise of power of judicial review, directs the authority to 'consider' and decide the matter. In such cases, while exercising the power of judicial review, the High Court directs 'consideration' without examining the facts or the legal question(s) involved and without recording any findings on the issues. The High Court may also direct the authority to 'consider' afresh, where the authority had decided a matter without considering the relevant facts and circumstances, or by taking extraneous or irrelevant matters into consideration. In such cases also, High Court may not examine the validity or tenability of the claim on merits, but require the authority to do so. 3) Where the High Court finds the decision-making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to 'consider' the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the court. 3) Where the High Court finds the decision-making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to 'consider' the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the court. But where the High Court without recording any findings, or without expressing any view, merely directs the authority to 'consider' the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the court. 4) We may also note that sometimes the High Courts dispose of matter merely with a direction to the authority to 'consider' the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the court, to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to 'consider' the matter afresh. Be that as it may. 5) There are also several instances where unscrupulous petitioners with the connivance of 'pliable' authorities have misused the direction 'to consider' issued by court. We may illustrate by an example. A claim, which is stale, time-barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to 'consider' and dispose of the representation. When the court disposes of the petition with a direction to 'consider', the authority grants the relief, taking shelter under the order of the court directing him to 'consider' the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order 'to consider' as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order 'to consider' as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to 'consider', may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of court's direction to 'consider' the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily wagers seeking regularization/absorption into regular service is a species of cases, where there has been a large scale misuse of the orders 'to consider'. 17. In Bhikhubhaivithalabhai Patel vs. State of Gujarat, 2008 (4) SCC 144 , the Hon’ble Apex Court observed as under: “… The term ‘consider means to think over; it connotes that there should be active application of the mind. In other words, the term ‘consider’ postulates consideration of all the relevant aspects of the matter. …” 18. In Oriental Bank of Commerce Vs.Sunder Lal Jain, 2008 (2) SCC 280 , the Hon’ble Apex Court held as under: “… Consider means to look at closely and carefully; to think or deliberate on; to take into account. …” 19. In Ram Chander Vs. Union of India, 1986 (3) SCC 103 , the Hon’ble Apex Court held that “consider” means an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decisions. 20. In Divisional Personnel Officer, Southern Railway Vs. T.R. Chellappan, 1976 (3) SCC 190 , 201, the Hon’ble Apex Court held that the term “consider” postulates consideration of all the aspects, the pros and cons of the matter after hearing the aggrieved person. 21. In Barium Chemicals Ltd. Vs. A.J. Rana, 1972 (1) SCC 240 , the Hon’ble Apex Court held that the dictionary meaning of the word ‘consider’ is to review attentively, to survey, examine, inspect (arch.), to look attentively, to contemplate mentally, to think over, mediate on, give heed to, take note, to think deliberately, bethink oneself to reflect’. The words ‘to consider’ means to think with care. The words ‘to consider’ means to think with care. It is also mentioned that to ‘consider’ is to fix the mind upon with a view to careful examination, etc. 22. Thus, a conspectus of the above decisions of Hon’ble Apex Court, the word ‘consider’ means there should be intense application of mind to the facts of the case basing on the averments. 23. In the case on hand, learned single judge of this Court directed the respondent authority to consider the representation, dated 09.11.2018 of the petitioner. When the petitioner made a specific averment in the representation about respondent providing jobs to other three persons, the order impugned doesn’t even meet that averment. However, the same to be explained in the counter affidavit. It does not satisfy the direction of this Court to ‘consider’. The order should reflect the objective consideration. 24. It is pertinent to mention here that the order passed by Commissioner/2nd respondent, rejecting petitioner’s case for promotion does not meet the contention of the petitioner qua promotion affected to three persons. Thus, the order passed by the Commissioner/2nd respondent, in the opinion of this Court, needs to be set aside. 25. Apart from the above, as pointed out supra nothing is placed before this Court regarding adoption of Rules formulated in G.O.Ms.No.107, Public Works (LLJ) Department, dated 07.02.1974 to the Corporation. 26. In view of the same, order in Rc.No.6177/2019/E2, dated 05.10.2019 passed by the Commissioner/2nd respondent is set aside. The matter is remanded to the 2nd respondent to pass a reasoned order within a period of eight (08) weeks from the date of receipt of a copy of this order. 27. With the above direction, this writ petition is allowed. No order as to costs. Miscellaneous petitions, pending if any, shall stand closed. Interim stay, granted if any, shall stand vacated.