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2023 DIGILAW 95 (AP)

J. Shantha Murthy v. State of Andhra Pradesh

2023-01-06

VENKATESWARLU NIMMAGADDA

body2023
ORDER : This writ petition under Article 226 of the Constitution of India is filed seeking the following relief:- “.....to issue a Writ of Mandamus or any other appropriate Writ, Order or declaring the action of the respondents 1 to 3 in not preparing the merit-cum-seniority in the cadre of S.G.T for the batch 1998 and in not promoting the petitioner from 2009 and not fixing the seniority from the year 2009 in the cadre of School Assistant by following the merit-cum-seniority in the cadre of SGT and also by not following G.O.Ms.No.15 Education (SE-Ser.II) Department dt 26.01.2009 is illegal, arbitrary, violative of principles of natural justice and also violative of Articles 14 and 21 of the Constitution of India and consequently direct the respondents 1 to 3 to promote the petitioner from 2009 itself as SGT and fix the seniority of the petitioner in the cadre of School Assistant from the year 2009 by duly following G.O.Ms.No.15 Education (SE-Ser.II) Department dt.26.01.2009 and by preparing the merit-cum-seniority list in the cadre of S.G.T for the batch 1998 and to pass such other order...” 2. The case of the petitioners in brief is that petitioner is working as School Assistant(Maths) in Z.P.High School, Ch.Malkapuram, Dhone Mandal, Kurnool District. Initially, the petitioner herein was selected to the post of Secondary Grade Teacher in mathematics in the open category by the duly constituted District Selection Committee in the year 1998, though the petitioner belong to the BC-A category, basing on his merit, he was appointed on 15.08.1998. Later he worked as Secondary Grade Teacher in various villages. In the year, 2020 the petitioner was promoted as Senior Assistant (maths). He further submits that as per the Service law jurisprudence even though the petitioner was selected to the post of SGT(Maths) in the open category basing on the merit, since the petitioner belong to the BC-A category, his case was not considered for promotion under reserved category. It is further submitted that once a selection has been done basing on the merit then the same has to be followed. But unfortunately in the present case on hand, the respondents have not prepared any merit cum seniority list in the category of SGT regarding the 1998 batch in which the petitioner was selected. It is further submitted that once a selection has been done basing on the merit then the same has to be followed. But unfortunately in the present case on hand, the respondents have not prepared any merit cum seniority list in the category of SGT regarding the 1998 batch in which the petitioner was selected. Moreover, the junior most candidates in the list of SGT (Maths), 1998 batch got promoted to the post of School Assistants even though the petitioner was the senior most eligible candidate in the said category. 3. The further case of the petitioner is that the Government of Andhra Pradesh vide G.O.Ms.No.15 Education (SE-Ser-II) Department dated 26.01.2009 had formulated General Rules relating to Regulations for Promotions and Transfer of the categories of the Head Masters Gr.II, Gazetted School Assistants and SGTs and their equivalent categories. As per Rule-3 of the said Rules, there is a procedure prescribed for promotions. According to which for the selection posts the criteria is merit-cum-ability and for non-selection posts with criteria is merit-cum-fitness as provided under Rule-5 of the Andhra Pradesh State and Subordinate Service Rules, 1996. Therefore, according to the said G.O. merit-cum-seniority list have to be prepared and all the promotions have to be in accordance with the said list. It is further submitted that in the year 2009, certain promotions were made for the posts of School Assistant (Maths) from its feeder category i.e., from SGT(maths). But unfortunately the promotions were made basing on the roster point ignoring the seniority fixed by the District Selection Committee on merit list basis and also contrary to the G.O.Ms.No.15 issued by the Government of Andhra Pradesh. Moreover, the 4th respondent who secured less marks than the petitioner was promoted to the post of School Assistant in the year 2009 without following merit-cum-seniority roster. In view of the same, the petitioner herein submitted a representation to the 3rd respondent brining to the notice of the 3rd respondent that merit-cum-seniority list has not been followed during the time of promotions. While the things stood thus, the respondents had again called for promotions in the year 2012 and promoted the juniors of the petitioner to the post of School Assistant and the same are contrary to the rule position as contemplated under G.O.Ms.No.15. While the things stood thus, the respondents had again called for promotions in the year 2012 and promoted the juniors of the petitioner to the post of School Assistant and the same are contrary to the rule position as contemplated under G.O.Ms.No.15. Later, the petitioner herein made another representation dated 13.08.2014 to the 3rd respondent questioning the promotions made contrary to the rules in vogue. Aggrieved by the action of the respondents in not promoting the petitioner to the post of School Assistant and not following the merit-cum-seniority, the petitioner herein filed O.A.No.396 of 2017 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad. Pending O.A., the petitioner has been promoted as School Assistant. Thereafter, the petitioner herein made a representation dated 03.04.2021 to the 3rd respondent herein stating that no merit-cum-seniority has been prepared for the cadre of S.G.T. till date and the petitioner candidature was not considered for promotion form the year 2009. Hence, the present writ petition. 4. Learned Senior Counsel appearing for the petitioner would submit that the respondents have not prepared any merit-cum-seniority list under the category of 2nd Grade teachers in all these years and they were following the seniority list issued by the DSC in the year 1998. He further submits that the petitioner is eligible and senior most qualified and meritorious candidate among all the 2nd grade teachers under BC-A category to get promotion to the cadre of School Assistant. As per the merit-cum-seniority list issued by the DSC, the petitioner is the senior most to the 4th respondent herein since the petitioner secured 450 rank, but the 4th respondent secured 510 rank. He further submits that contrary to the merit-cum-seniority list issued by the DSC, 1998 in the year 2009, the respondent authorities effected the promotions in respect of School Assistants(maths), the 4th respondent herein vide proceedings dated 12.02.2009. He further contends that the respondents herein called for promotion again in the year 2012 and promoted juniors to the petitioner to the post of school assistant ignoring the merit-cum-seniority list and followed only the roster point. Such action of the respondents is contrary to the rule 3 of G.O.Ms.No.15 dated 26.01.2009. 5. He further submits that questioning the non-consideration of the candidature of the petitioner for promotion to the school assistant, the petitioner herein filed O.A.No.396 of 2017 on the file of the Andhra Pradesh Administrative Tribunal. Such action of the respondents is contrary to the rule 3 of G.O.Ms.No.15 dated 26.01.2009. 5. He further submits that questioning the non-consideration of the candidature of the petitioner for promotion to the school assistant, the petitioner herein filed O.A.No.396 of 2017 on the file of the Andhra Pradesh Administrative Tribunal. Pending the said O.A., the petitioner was promoted to the post of the school assistant on 05.01.2020. He further submits that the petitioner continuously pursuing the respondents herein for consideration of his candidature since 2009 and requesting to follow merit-cum-seniority rather than roster cum seniority vide representations dated 09.02.2009, 18.02.2009, 20.01.2012, 23.08.2014, 19.12.2016 and 03.04.2021 respectively. But for one reason or the other, the respondents neither considered the representations of the petitioner nor acted upon the said representations. He further submits that as per the rule 3 as mentioned, the respondent authorities shall follow merit-cum-seniority as issued by the DSC,1998 in the absence of any other seniority list. The rule 3 and 5 of G.O.Ms.No.15, Education (SE-Ser.II) Department dated 26.01.2009 reads as follows: 3. Posting criterial for promotions: for selection posts, the criteria for selection is merit-cum-ability for non-selection posts the criteria is seniority-cum-fitness as provided in rule 5 of the Andhra Pradesh State and Subordinate Service Rules,1996. 5.Issue of promotion orders: a list of approved candidates for Gazetted category posts and a fit list for nongazetted posts shall be prepared as per Rule-6 of the Andhra Pradesh State and Subordinate Service Rules, 1996. The orders of promotion shall be issued as per the vacancy position to the persons included in the panel and recommended for promotion. If any person do not join duty in the promotion post, his case shall be considered as per rul-11(b) of the Andhra Pradesh state and subordinate service rules, 1996 as amended in G.O.Ms.No.145, General Administration (Ser.D) Department dated 15.06.2004. 6. If the rule 3 is complied with by the respondents, the petitioner would have been promoted as senior assistant in the year 2009 itself on par with the 4th respondent as well as the other juniors to the petitioner. As such, the present writ petition is liable to allowed. 7. 6. If the rule 3 is complied with by the respondents, the petitioner would have been promoted as senior assistant in the year 2009 itself on par with the 4th respondent as well as the other juniors to the petitioner. As such, the present writ petition is liable to allowed. 7. On the other hand, learned Government Pleader for services-III would submit that the present writ petition is filed challenging the promotion effected to the 4th respondent i.e., in the year 2009 approximately after 12 years, is not maintainable and is liable to be dismissed on the ground of delay and laches. 8. Learned Government Pleader would further submit that the petitioner should have been filed after ninety (90) days of fixing of the seniority under Article 20(d) of Andhra Pradesh state and Subordinate Service Rules1996 but the petitioner not opted and not filed any appeal before the appellate authority challenging the seniority list of the year 2009. He further submits that as per Rule 33 of Andhra Pradesh state and subordinate service rules, the petitioner was selected under O.C. category and respondent No.4 under BC-A category in their seniority list prepared by the selection committee as per roster points in the year 2009 against which the petitioner neither filed any statutory appeal nor submitted any objections. He further submits that the promotions in the year 2009 was taken place according to the selection list in the year 1998 and due to roster points, the 4th respondent was selected and promoted in the year 2009 itself as per the selection list. Therefore, the present writ petition is liable to be dismissed on the ground of delay and latches and the promotion of the 4th respondent is in accordance with rule 3(b) only as well as the seniority list prepared in the year 2009. As such, the writ petition is liable to be dismissed. 9. Learned senior counsel as stated above he also relied upon the judgments rendered by this hon’ble Apex Court in Bimlesh Tanwar vs. State of Haryana and others, (2003) 5 SCC 604 , wherein it is held that The duty of the Public Service Commission is to make available to the Government to complete list of qualified candidates arranged in order of merit. Thereafter, the Government is to make the selection strictly in the order in which they have been placed by the Commission as a result of the examination. The names of the selected candidates are then to be entered in the register maintained by the high court strictly in that order and appointments made from the names entered in that register also strictly in the same order. It is of course, open to the Government not to fill up all the vacancies for a valid reason. The question as to whether the determination of inter se seniority would depend upon the filling up of the vacancies so far as the reserved categories are concerned, having regard to the roster points, in our opinion, is no longer res integra. In Ajit Singh (II) v. State of Punjab ((1999) 7 SCC (L&S) 1239), the decision of this Court in R.K.Sabharwal v. State of Punjab ( (1995) 2 SCC 745 ) case has, thus, been explained. P.S.Ghalaut v. State of Haryana ( (1995) 5 SCC 625 ) relied upon by Dr.Chauhan, is a decision rendered by a two- Judge Bench. In that case Rule 13 of the Rules envisaged that the Seniority inter se of members of the service shall be determined by the length of continuous service on any post in the service; provided further that in the case of two or more members appointed by direct recruitment, the order of merit determined by the Commission shall not be disturbed in fixing the seniority. Despite the said rule, it was held. “Take for instance vacancies Nos.1 and 6, as pointed out in Chief Secretary’s letter have admittedly been reserved for Scheduled Castes. Suppose recruitment was made to fill up ten vacancies, three candidates from Scheduled Castes were selected. The first one as general and second and third were selected on the basis of reserved quota. The question is whether the firs candidate will be put in the quota allotted to the Scheduled Castes in the roster. Having been selected as a general candidate, though he is more placement in the roster, reserved for Scheduled Castes i.e. Nos.1 and 6 points. Consequently candidates 2 and 3 will get the placement at Nos.1 and 6 points. The question is whether the firs candidate will be put in the quota allotted to the Scheduled Castes in the roster. Having been selected as a general candidate, though he is more placement in the roster, reserved for Scheduled Castes i.e. Nos.1 and 6 points. Consequently candidates 2 and 3 will get the placement at Nos.1 and 6 points. Consequently candidates 2 and 3 will get the placement at Nos.1 and 6 and the first candidate will get the placement in the order of merit along with the general candidates according to the order of merit maintained by the Selection committee or the Public Service Commission. He cannot complain that having been selected in the merit, he must be placed in the placement reserved for Scheduled Castes at Point No.1 in the roster. Equally, though general candidate is more meritorious in the order of merit prepared by the Public Service Commission or the Selection Committee, when the appointments are made and the vacancies are filled up according to the roster, necessarily and inevitably the reserved candidates though less meritorious in the order of merit maintained by the Public Service Commission would occupy the respective places assigned in the roster. Thereby they steal a march over some of the general candidates and get seniority over the general candidates. This scheme is, therefore, constitutional, valid and is not arbitrary.” An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of a class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S.Ghalaut does not lay down a good law. Furthermore, it is now well settled that a settled seniority position should not be unsettled. The respondents had already been posted to the post of Additional District Judge. As would appear from the report of Sub-Committee that the seniority list was published in the year 1992. Representations were, however, made only in the year 1997 which was rejected by the High Court on 22.08.1997. The respondents had already been posted to the post of Additional District Judge. As would appear from the report of Sub-Committee that the seniority list was published in the year 1992. Representations were, however, made only in the year 1997 which was rejected by the High Court on 22.08.1997. The writ petition was filed in March 1998 which was dismissed by reason of the impugned judgment dated 18.08.1999. 10. Having regard to the submissions made by the learned counsel for the petitioner as well as the learned Government Pleader for services-III, the contention of the learned counsel for the petitioner that in view of the law laid down by the Hon’ble Apex Court as stated above, the respondents have violated Rule 3 of G.O.Ms.No.15 dated 26.01.2009 and the merit-cum-seniority list of DSC, 1998. Therefore, the contention of the petitioner is valid in view of the law laid down by the Hon’ble Apex Court. On the other hand, the contention of the learned Government Pleader for services-III that there is delay of 12 years from the date of preparation of seniority list and the petitioner has not availed any statutory appeal as provided under Article 26(D) of the Andhra Pradesh State and Subordinate Service Rules and also not submitted any objections for the seniority list of 2009 is not valid in view of the law laid down by the hon’ble Apex Court in the judgment referred supra. 11. In view of the foregoing discussions as stated above, the petitioner is entitled for promotion on par with the 4th respondent herein from the year 2009 along with all consequential benefits apart from the fixing of seniority of the petitioner in the cadre of school assistant in accordance with law and as per Rule 3 of G.O.Ms.No.15 dated 26.01.2009 and also in view of the representations submitted by the petitioner since 2009 to 2021. 12. Accordingly, the Writ Petition is allowed. There shall be no order as to costs. Consequently, Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.