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2023 DIGILAW 765 (AP)

B. Srinu Babu v. A. P. Transco

2023-05-05

D.V.S.S.SOMAYAJULU, V.SRINIVAS

body2023
JUDGMENT : (D.V.S.S. Somayajulu, J.) This Writ Appeal is filed questioning the order of the learned single Judge in W.P.No.28275 of 2021, dated 02.11.2022. The said Writ Petition is filed for the following relief : “…..to issue an appropriate Order, Direction or Writ more particularly one in the nature of Writ of Mandamus, to declare the action of the 2nd Respondent in issuing proceedings vide Memo No.CGM(HR)/DS (Per) AS (HR)/PO (Reg)/197/12, dated 12.11.2021 is illegal, arbitrary and unjust and consequently direct the respondents to consider the last date of examination of B.Tech., as criteria for the conversion of AAE post to AE post instead of issue of provisional certificate of the B.Tech., Course or alternatively to cancel the conversion orders issued and treat the petitioners as AAE by extending all the benefits including seniority and pass such other orders or orders.” 2. After hearing, the writ petition was dismissed on merits. Questioning the same, this Writ Appeal has been filed. 3. This Court has heard Smt. Kavitha Gottipati, learned counsel for the appellants and Sri Arup Koushik Karavadi, learned standing counsel for the respondents. 4. According to Smt. Kavitha Gottipati, the learned single Judge committed an error in passing the impugned order. She submits that the learned single Judge has overlooked the option form, which talks of the “last date for appearing the examination”, and that this option form is given by the respondents themselves. It is also submitted that the appellants, who applied for conversion of the post after getting B.Tech., examination, agreed to forego their seniority only if the conversion is given from the last date of examination. It is admitted that both the appellants got their B.Tech., degrees and submitted their provisional certificates immediately. It is also stated that last date of examination is the criteria for conversion and that if the interpretation accepted by the respondents is viewed carefully, a person who passes an examination later but gets a certificate earlier will be considered as senior. She submits that this issue was raised by the appellants but it was not looked into. She also submits that the orders of conversion are provisional and that the appellants were agitating for their rights by making periodical representations. Therefore, according to her, the settled seniority is not being upset. She submits that this issue was raised by the appellants but it was not looked into. She also submits that the orders of conversion are provisional and that the appellants were agitating for their rights by making periodical representations. Therefore, according to her, the settled seniority is not being upset. She also argues that the regulations relied upon by the learned single Judge do not apply to the issues at hand and that the learned single Judge committed an error. The principal judgment relied upon by her is State of Andhra Pradesh v. V. Prasanna Rani and another, 2017 (5) ALT 413 (DB). In addition, she relies upon the case of JVSP Purnananda Rao and others v. Commissioner and Director of School Education, A.P., Hyderabad and Others, 2006 (1) ALT 528 (DB); J. Shivaji Yadav and another v. G. Srinivasa Murthy and Others, 2017 (2) ALT 116 (DB) and the judgment of learned single Judge of this Court in W.P.No.16954 of 2020. 5. In reply to this learned standing counsel argues that on 05.02.1992 itself the APTRANSCO clearly issued a Memo stating that the date on which a provisional certificate is actually issued will be taken as critical date having passed the examination. He points out that the appellants are fully aware of this memo. Even the note in the APSEB service regulations which permits Additional Assistant Engineers who acquired Engineering Degree to be reckoned as Assistant Engineers clearly states that it shall be from the date of acquisition of the degree. He also points out that the acquisition of a degree can only be established by a provisional certificate, which is issued, which clarifies that the candidate has actually passed the examination. It is also pointed out by the learned standing counsel that the appellants, who have opted to be counted as Assistant Engineers, have willfully foregone their promotion, seniority etc., and therefore, they cannot now turnaround and state that in the alternative their prayer may be allowed. He also relies upon the judgments reported in R. Muthukumar and Others v. Chairman and Managing Director, TANGEDCO and Others, 2022 SCC OnLine SC 151 and Indu Shekhar Singh and Others v. State of U.P. and Others, (2006) 8 SCC 129 . Therefore, he submits that the learned single Judge did not commit any error. COURT: 6. Both the learned counsel have filed list of events and dates. Therefore, he submits that the learned single Judge did not commit any error. COURT: 6. Both the learned counsel have filed list of events and dates. The facts are not much in dispute. The petitioners were appointed as AAE on 30.11.2009 and 23.10.2009 respectively. Thereafter they acquired the B.Tech., Degree. Petitioner No.1 got his provisional certificate on 12.07.2011 and the petitioner No.2 got his provisional certificate on 06.08.2011 which enabled them to seek conversion. They executed the option forms for conversion from AAE to AE. Petitioner No.1 was given conversion on 13.07.2011 and petitioner No.2 was given conversion on 07.08.2011. It is only thereafter, they submitted the representations for considering last date of exam as the critical date and both the candidates signed their option forms. 7. In paragraph 1 of the option form of the petitioners it is clearly mentioned that if the request for absorption as AE from the date of acquiring B.Tech., qualification is complied with they will forego their seniority as mentioned in the said form. In the later half of the form petitioner No.1 states that his services were regularized from 29.11.2009 and the 2nd petitioner states that the services are regularized with effect from 23.10.2009. 8. The argument advanced is that their services are to be regularized from the last date of the examination. Petitioner No.1’s last date of examination is 16.08.2010, whereas petitioner No.2’s last date of examination is 09.03.2011. The later half of the option form is, therefore, not in accordance with the prayer. Even otherwise this Court notices that on 05.02.1992 itself a memo was issued by the State Electricity Board, (the predecessor), which clearly states that the date of the provisional certificate is the date on which the degree is deemed to have been obtained. Even in the note from the APSEB Service Regulations also it is clarified that the Additional Assistant Engineers, who acquired the certificate of B.E. Degree, while in the service, shall be entitled to be reckoned as Assistant Engineers from the date of acquisition of the requisite qualification. This interpretation also stands to reason. If a person acquires the requisite qualification for being regularization, promotion etc., the date of acquisition of qualification is the relevant date. This date of acquisition is reflected in the provisional certificate, which in turn clarifies/certifies that the candidate has passed the requisite examination. This interpretation also stands to reason. If a person acquires the requisite qualification for being regularization, promotion etc., the date of acquisition of qualification is the relevant date. This date of acquisition is reflected in the provisional certificate, which in turn clarifies/certifies that the candidate has passed the requisite examination. Therefore, in the opinion of this Court, it is the date of acquisition of the qualification alone that is critical for this reclassification. 9. A perusal of the documents filed show that B. Srinu Babu, the 1st petitioner, addressed a letter dated 10.04.2013. In this he clearly mentioned that examination was completed in August, 2010, but due to his personal problems and being busy in official work he could only apply for certificate in May, 2011. The letter addressed by the 2nd petitioner clearly states that the last date of examination was 09.03.2011 and the provisional certificate was issued on 06.08.2011. In the case laws cited by the learned counsel for the appellants, is the Prasanna Rani’s case, which relies upon the judgment of JVSP Purnananda Rao case. In the JVSP Purnananda Rao case it was noticed that although the test was conducted in 1987, the results were not published by the APPSC till 06.10.1988, and for such laches on the part of APPSC, it was held that the 3rd respondent could not be penalized. This was followed in the case of Prasanna Rani. 10. Hence these cases are not strictly applicable to the delay in these writs is not due to the university. In addition, this Court notices that the relevant rule clearly states that the petitioner shall be entitled to be considered from the date of acquisition of the requisite qualification. In the opinion of this Court, the date of “acquisition” of the requisite qualification would be the date on which the provisional certificate is given. Since that would be the proof of the fact that the petitioner has acquired the requisite qualification. In the cases of gross delay etc., where the others are promoted, sympathetic consideration can arise, but in the case of this nature where the 1st appellant himself has delayed in getting his certificate, he cannot turnaround and state that the date of examination should be considered as the date of relevant date. In the cases of gross delay etc., where the others are promoted, sympathetic consideration can arise, but in the case of this nature where the 1st appellant himself has delayed in getting his certificate, he cannot turnaround and state that the date of examination should be considered as the date of relevant date. It is also possible that in an examination having multiple subjects a person can fail in one or two subjects and pass in other subjects. Thereafter, he can appear in supplementary examinations for the failed subjects. If he passed in the supplementary examinations he will be deemed to have been qualified only when he clears all the subjects. Therefore, it can only be said that he has acquired the requisite qualification when he has cleared the supplementary examination. Thus, the date of acquisition of qualification, in the opinion of this Court, is the date on which the candidate is declared to have been passed. Therefore, for all the above reasons this Court finds no fault in the order passed by the learned single Judge. 11. As far as the 2nd issue is concerned viz., to cancel the conversion orders and to treat the appellants as AAE only with consequential benefits, this Court is of the opinion that the appellants cannot approbate and reprobate. They have exercised their option. The said option was accepted. They secured an entry and the date of conversion in the case of the 1st appellant is 13.07.2011 and for the 2nd appellant it is 07.08.2011. Therefore, having exercised their option they cannot now turn back and claim retrospective benefits. The law on the subject is clear. The case law cited by the respondents are applicable to the facts and circumstances of the case. The rule on the basis of which they have exercised their option is also very clear. Sub-clause in the Note-2 clearly state as follows : “(i) They should forego their seniority in the cadre of Addl.Asst.Engineers after fixation of seniority in the category of Asst.Engineers as per the above principle. (ii) They should give option for acceptance or otherwise for such absorption and fixing of the seniority as detailed above in the cadre of Asst.Engineers. If they do not agree for fixation of seniority as above, they shall remain as Addl.Asst.Engineers.” 12. (ii) They should give option for acceptance or otherwise for such absorption and fixing of the seniority as detailed above in the cadre of Asst.Engineers. If they do not agree for fixation of seniority as above, they shall remain as Addl.Asst.Engineers.” 12. In that view of the matter, as the writ petitioners-appellants exercised their option, foregone their regular service, they cannot in the year 2021 seek a review of this entire exercise. As mentioned earlier their conversion took place more than a decade prior to the filing of the writ. Merely making representation will not come to their aid. Therefore, after this passage of time, they cannot turnaround and request that the alternative relief should be granted. 13. In the conclusion this Court holds that the Learned Single Judge’s order does not suffer from any infirmity. Accordingly, the Writ Appeal is dismissed. No order as to costs. 14. Miscellaneous petitions pending if any, shall also stand dismissed. No order as to costs.