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2023 DIGILAW 91 (AP)

K. Ramanaiah v. State of Andhra Pradesh

2023-01-06

VENKATESWARLU NIMMAGADDA

body2023
ORDER : 1. This Writ Petition under Article 226 of the Constitution of India is filed seeking the following relief: “.......to issue a writ, order or direction more particularly one in the nature of Mandamus declaring the action of the respondents in not considering the case of the petitioner for promotion to the post of Junior Assistant Officer, though the petitioners were eligible and qualified for the panel year 2020-21 and not promoting them as Junior Accounts Officers as illegal, arbitrary and violation of Articles 14 and 16 of the Constitution of India and also in violation of Rule 6 of the Andhra Pradesh Stat and Sub Ordinate Service Rules, and consequently direct the respondents to consider the cases of the petitioners for promotion to the post of Junior Accounts Officers in the panel year 2020-21 and promote them on par with juniors with all consequential benefits including seniority and to pass such other order......” 2. The case of the petitioners in brief is that in pursuance to the selection made by made Andhra Pradesh Public Service Commission, petitioner Nos. 1 and 2 were appointed as Junior Assistants in the Office of the 2nd respondent on 09.04.1999 and 23.08.2013 respectively. Later, the petitioners were promoted as Senior Accountants on 16.11.2017 and their services were also got regularised by the Joint Director of Treasuries and Accounts in the cadre of Senior Accountants vide proceedings dated 18.06.2018 w.e.f. 10.11.2017. Later, the 2nd respondent was pleased to prepare the seniority list of Senior Accountants whose services were regularized on 01.09.2018, wherein the petitioners were placed at S. No. 108 and 109 respectively. It is submitted that the Additional Director (FAC) was pleased to declare the probation of the petitioners in the cadre of Senior Accountants w.e.f. 10.11.2018 and 29.11.2018 respectively. It is further submitted that the Andhra Pradesh Public Service Commission issued notification calling applications from the eligible candidates for the Departmental Tests May 2020 session vide notification dated 01.07.2020 and accordingly, the petitioners have applied for the same. Subsequently, the APPSC has issued hall tickets fixing examination dates from 25.08.2020 to 28.08.2020. But whereas, the examinations were not conducted as per the schedule mentioned in the hall ticket and the same was postponed. Later, the APPSC issued fresh notification inviting applications for departmental tests May-2020 session, wherein it is stated that those who applied in pursuance of earlier notification, need not apply. But whereas, the examinations were not conducted as per the schedule mentioned in the hall ticket and the same was postponed. Later, the APPSC issued fresh notification inviting applications for departmental tests May-2020 session, wherein it is stated that those who applied in pursuance of earlier notification, need not apply. It is further submitted that the APPSC after conducting departmental test declared the petitioners as eligible candidates. 3. While the things stood thus, the 2nd respondent vide memo dated 04.12.2020 requested to furnish the particulars of all the Senior Accountants who have completed two(02) years of service as on 01.09.2020 in the prescribed nomination form on or before 18.12.2020 to prepare the panel of eligible and qualified Senior Accountants for promotion to the post of Junior Accounts Officer of Branch-I of Treasuries and Accounts Department for the panel year 220-21. Accordingly, the petitioners herein submitted their nominations to the 2nd respondent for consideration. It is submitted that the 2nd petitioner also made a representation dated 12.03.2021 requesting to consider the case of the petitioners for promotion for the panel year 2020-21, since there is mistake on their part and the APPSC delayed the departmental tests for which petitioner cannot be deprived. Later, the petitioners also submitted revised nominations to the 2nd respondent only after passing the departmental tests. The 2nd respondent issued memo dated 18.08.2021 requesting all the unit officers to furnish all the particulars of all the Senior Accountants who have completed two years of service as on 01.09.2021 along with ACRs up to 2020-21. But the 2nd respondent without preparing the panels under Rule 6 of the Andhra Pradesh State and Subordinate Service Rules, proceeded with effecting the promotions due to that juniors to the petitioners those who are at S. Nos. 110, 111, 112, 113 and 114 were got promoted as Junior Accounts Officers vide proceedings dated 27.08.2021. In view of the same, the 2nd petitioner made a representation to the 2nd respondent on 16.09.2021 requesting to consider their candidature for promotion. But no action has been taken so far. Having no other option, the petitioners filed the present writ petition. 4. Learned counsel for the petitioners would submit that even though the petitioners were eligible and qualified as per Rule 6 of the Andhra Pradesh State and Subordinate Rules, the case of the petitioners was not considered for promotion to the post of Junior Accounts Officer. Having no other option, the petitioners filed the present writ petition. 4. Learned counsel for the petitioners would submit that even though the petitioners were eligible and qualified as per Rule 6 of the Andhra Pradesh State and Subordinate Rules, the case of the petitioners was not considered for promotion to the post of Junior Accounts Officer. He further submits that in view of the COVID pandemic, departmental tests which are required for promotion were not conducted as per schedule and postponed the same, but finally the petitioners got an opportunity to participate in the departmental test pursuant to the notification dated 01.07.2020 and the petitioners had passed the said departmental test on 09.03.2021 and 10.03.2021. As such, the petitioners herein had acquired the requisite qualification for the promotion. He further submits that in view of the acquisition of the required qualification by the petitioners and as per the Rule 6 of the Andhra Pradesh State and Subordinate Rules, the respondent authorities must consider the cases of the petitioners for promotion for the panel year 2020-21. He further submits that the respondents effected the promotion only on 27.08.2021 but by that time the petitioners being seniors acquired the qualification much prior to the consideration for effecting the promotions. 5. The further case of the petitioners is that at the time of admission, this Court, vide order dated 31.01.2022 granted an interim direction which reads as follows: “However, considering the submissions made by the learned counsel for the petitioner and perusing Rule 6 along with the Proviso of the Andhra Pradesh State and Subordinate Service Rules, there shall be interim direction to the respondents to consider the case of the petitioners for promotion to the post of “Junior Accounts Officer” by invoking Rule 6 of the said Rules.” 6. Learned counsel for the petitioners further submits that even though this Court granted interim order dated 31.01.2022, the candidature of the petitioners was not considered which amounts to disobedience of the orders of this Court apart from the violation of Rule 6 of the Andhra Pradesh State and Subordinate Rules. Learned counsel for the petitioners further submits that even though this Court granted interim order dated 31.01.2022, the candidature of the petitioners was not considered which amounts to disobedience of the orders of this Court apart from the violation of Rule 6 of the Andhra Pradesh State and Subordinate Rules. He further submits that immediately after acquisition of the required qualification, the 2nd petitioner submitted representation dated 12.03.2021 and pursuant to the same, the 2nd respondent issued proceedings dated 15.03.2021 for revision in nomination form for the promotion to the post of Junior Accounts Officer and finally the 2nd respondent issued memo dated 18.08.2021 sought for nominations from the Senior Assistants/Accountants for promotion to the category Junior Accounts Officer for the panel year 2020-21. Since, the petitioners possess the requisite qualifications, the case of the petitioners shall be considered for promotion along with their juniors. Hence, the petitioners prays to allow the Writ Petition. 7. On the other hand, learned Government Pleader for Services-I appearing for the respondents filed counter affidavit wherein it is submitted that nominations were called in respect of those who completed two years of service in senior accountant cadre and who qualified the departmental test on or before 01.09.2020. Based on the nominations furnished by the concerned authorities, the respondents conducted DPC for the panel year 2020-21 to the candidates eligible and fully qualified as on 01.09.2020. It is further submitted that the petitioners herein were not included in the panel as they did not possess the required departmental test as on the qualifying date of 01.09.2020. Admittedly, they acquired the requisite qualification on 09.03.2021. Therefore, the candidature of the petitioners cannot be considered in the DPC panel year 2020-21. 8. Learned Government Pleader for Services I draws the attention of this Court to Rule 6 of the Andhra Pradesh State and Subordinate Rules and the same reads as follows: “The panel of candidates so prepared shall be viewed after a period of six months reckoned from the date of approval of the panel, for the purpose of considering the cases of such other persons whose names were not included in the panel prepared earlier for not passing the prescribed tests or for not having special qualifications prescribed under the rules, if they have subsequently passed those tests or acquired the said qualifications and are otherwise found suitable for inclusion in the panel of the year. No such review of list of approved candidates shall, however, be undertaken where no tests or special qualifications are prescribed under the rules as condition precedent for promotion or appointment by transfer. Provided also that no panel of candidates need to be prepared: (i) If vacancies are not available for the particular panel period subject to the appointing authority recording a certificate to that effect. (ii) Where the appointing authority does not consider if necessary: Provided also that the Government may order preparation of panel of candidates as frequently as may be necessary in the exigencies of administration.” 9. It is further submitted that in the present case there are no vacancies by the time of acquisition of required qualification by the petitioners, moreover the promoting authority does not consider necessary for review of the panel for the panel year 2020-21 after qualified date. In view of that petitioners are not entitled for reconsideration/to review the DPC panel year 2020-21 after qualified date. He further contended that admittedly the petitioners acquired the qualification after completion of six months from the qualified date. Therefore, as per the provision of Rule 6(b)(i)(ii) of the Andhra Pradesh State and Subordinate Service Rules, the petitioners are not entitled for the promotion. Hence, the Writ Petition is liable to be dismissed. 10. Having regard to the submissions made by the learned counsel for the petitioner and learned Government Pleader for Services-I the contention of the learned counsel for the petitioners that the petitioners acquired the qualification during the DPC panel year 2020-21 within a period of six months and as per the provision of Rule 6 of Andhra Pradesh State Subordinate Rules, the respondent authorities shall review the panel considering the persons who acquired the qualification and who acquired the eligibility in the meanwhile is valid and sustainable in view of the acquisition of required qualification by the petitioners on 09.03.2021 and 10.03.2021 itself. Whereas the promotions are effected after six months of the acquisition of the required qualification by the petitioners. Whereas the promotions are effected after six months of the acquisition of the required qualification by the petitioners. The other contention of the learned counsel for the petitioners that the 2nd respondent positively considered the representation of the petitioners and issued proceedings dated 15.03.2021 for revision of nominations of DPC panel year 2020-21 and later he issued a memo dated 18.08.2021 under which he specifically requested for furnishing all the information regarding qualified and eligible senior Assistants including who qualified within a period of 6 months for promotion to the Junior Accounts officer even for the DPC panel year 2021-2022 is valid and acceptable in view of the Rule 6 of Andhra Pradesh State and Subordinate Service Rules, 1996. The contention of the learned counsel for the petitioners that in view of the proceedings of the 2nd respondent and also in compliance of the provision of Rule 6 of the said Rules, appointing/promoting authority shall review the DPC Panel year 2020-21 since the promotions were effected after six(6) months of acquisition of required qualification by the petitioners is also reasonable and should be considered. On the other hand, the contention of the learned Government Pleader that the case of the petitioners cannot be considered in view of the non acquisition of the required qualification by the qualifying date i.e. by 01.09.2020 is untenable in view of the provision of Rule 6 of the said rules, 1996. The panel can be reviewed even after period of six months accordingly 2nd respondent issued memo dated 15.03.2021 and 18.08.2021 for inclusion of further eligible and qualified candidates. The other contention of the learned Government Pleader is that admittedly they acquired the qualification on 09.03.2021 and 10.03.2021 and by that date there are no vacancies even though the promotions are effected by 27.08.2021 and the proviso to Rule 6 of the said rules is not mandatory in view of the non availability of vacancies and the appointing authority does not consider it necessary for review of the panel is not sustainable in view of the proceedings of the 2nd respondent, the competent authority who specifically instructed the authorities concerned for revision of nominations vide letter dated 15.03.2021 and 18.08.2021 and also sought for information regarding eligible candidates from senior Assistant/Accountant for the panel year 2021. 11. 11. In view of the facts and circumstances stated above and in view of the foregoing discussions and also in view of the interim orders dated 31.01.2022 that the candidature of the petitioners should be considered for promotion to the post of Junior Accounts Officer for the DPC panel year 2020-21 within a period of two(02) months from the date of receipt of a copy of this order as per the seniority list dated 01.09.2022. 12. Accordingly, the Writ Petition is allowed. There shall be no order as to costs. 13. Consequently, Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.