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2024 DIGILAW 1190 (AP)

D. v. V. G. K Prasad VS State Of Andhra Pradesh

2024-08-23

K.MANMADHA RAO

body2024
ORDER : (K. Manmadha Rao, J.) : This Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief: “…..to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 3rd respondent in issuing proceedings in Rc.No.A1/506/2022-1,2 dated 12.09.2022 promoting respondents 4 and 5 as Senior Assistants without considering the petitioners representations dated 18.10.2022, 10.09.2022, 22.08.2022, 23.08.2022, 23.02.2022, 22.08.2021 and 12.08.2021 for re-fixing the seniority of the petitioner in the cadre of Junior Assistant w.e.f 17.02.2019 on par with his juniors and without issuing revised seniority list in the cadre of Junior Assistants as bad, illegal, arbitrary, violative of principles of natural justice, abuse of power, without jurisdiction and violative of Articles 14, 16 and 21 of the Constitution of India and consequently set aside the same and direct the 3rd respondent to grant seniority to the petitioner over and above the respondents 4 and 5 and to grant all consequential service and monitory benefits and pass such other orders....” 2. The precise case of the petitioner is that petitioner and respondents 4 and 5 were appointed as Computer Operators in the establishment of 3rd respondent temple in 2001. Thereafter, their services were regularized on 11.07.2011 as Computer Operators in the cadre of Record Assistants. As they were regularized on the same day, the age has to be taken into consideration for fixing the seniority among them, but the same could not be done by the respondents. As per their date of births, the petitioner shall be the senior among the respondents 4 and 5. Further, the provisional seniority list of record assistants was issued vide Memo dated 21.07.2018, wherein the petitioner was shown at Sl.No. 25 and respondents 4 and 5 are shown at 23 and 24, for which the petitioner has no objection, since charge memo was pending against the petitioner by that time and was not eligible for promotion. Thereafter, the promotions were granted to the respondents 4 and 5 as Junior Assistants vide proceedings dated 17.02.2019 by the 3rd respondent. Subsequently an enquiry was conducted by the 3rd respondent pursuant to the directions of this Court dated 21.06.2021 in W.P.No.11102 of 2021 and thereafter charges were dropped by the Executive Officer vide proceedings 31.07.2021. Thereafter, the promotions were granted to the respondents 4 and 5 as Junior Assistants vide proceedings dated 17.02.2019 by the 3rd respondent. Subsequently an enquiry was conducted by the 3rd respondent pursuant to the directions of this Court dated 21.06.2021 in W.P.No.11102 of 2021 and thereafter charges were dropped by the Executive Officer vide proceedings 31.07.2021. Later the petitioner made a representation dated 12.08.2021 requesting to grant promotion on par with his juniors in the cadre of Junior Assistant, but the 3rd respondent issued promotion as Junior Assistant vide proceedings dated 22.08.2021 with effect from 22.08.2021. In spite of several representations made by the petitioner, the respondents did not take action to treat as senior over above respondents 4 and 5. 3. While the matter stood thus, the 2nd respondent issued proceedings dated 09.09.2022 sanctioning three additional posts of Senior Assistants to the 3rd respondent/ temple. Thereafter the respondents 4 and 5 were granted promotions for Senior Assistants vide proceedings dated 12.09.2022 by the 3rd respondent, hence the petitioner made a representation dated 18.10.2022 to grant him promotion on par with his juniors and treat him as Senior, but in vain. But without issuing provisional seniority list or final seniority list in the cadre of the Junior Assistants the promotions granted to the respondents 4 and 5, which is highly illegal and arbitrary. Hence, inaction of the respondents is questioned in this writ petition and requested to allow the same. 4. Heard Mr. D.V.Sasidhar, learned counsel for the petitioner; Ms. Padmavathi Padnavis, learned Standing Counsel for the 3rd respondent and Mr. V.Venugopal Rao, learned Senior Counsel, representing Mr.Sambasiva Prathap Evana, learned counsel for the respondents 4 and 5. 5. During hearing learned counsel for the petitioner reiterated the contents urged in the writ affidavit and mainly contended that the 3rd respondent without issuing provisional seniority list or final seniority list in the cadre of the Junior Assistants the promotions granted to the respondents 4 and 5, which is illegal. It is further contended that as per Rule 2(f) of the Office Holders and Servant Rules, 2000 framed under G.O.Ms.No.888, dated 08.12.2000, the other expressions in the rules shall have the meaning assigned in the A.P.State and Subordinate Service Rules (in short ‘the Rules’). As such as per Rule 36(III) of the Rules, whoever is aged shall be senior, if the date of commencement of probation is the same. As such as per Rule 36(III) of the Rules, whoever is aged shall be senior, if the date of commencement of probation is the same. As such out of petitioner and respondents 4 and 5, the petitioner is the aged, as such he has to be treated as Senior, as they were regularized on the same day and probation date is also one and same. Unless his seniority is re-fixed above the respondents 4 and 5 and the petitioner granted consequential promotions and monetary benefits, the petitioner will suffer great loss and hardship. Hence, writ petition is liable to be allowed. 6. Per contra, 3rd respondent filed counter-affidavit denying all material allegations made in the writ affidavit and mainly contended that while preparation of provisional seniority list for the petitioner and respondents 4 and 5 the respondents for the Record Assistant posts the rule 36(iii) of A.P.State Subordinate Service Rules, 1996 was not observed. The provisional seniority list was prepared at their wish. As per Rule 36 says Inter se Seniority where the dates of commencement of probation are same: If the date of commencement of probation is same, whoever is aged shall be the senior. As per the said rule, the seniority of the petitioner should be fixed at Sl.No.27 instead of 29 as he was crossed the age of 38 year and the respondents 4 and 5 fixed at Sl.No.28 and 29. Accordingly, as per the seniority list promotions were given to the respondents 4 and 5. Therefore, there is no violation in granting promotions. Hence, the writ petition is liable to be dismissed. 7. Per contra, the respondents 4 and 5 filed counter-affidavit denying all material allegations made in the writ affidavit and mainly contended that the promotions to the post of Senior Assistant, given to the respondents 4 and 5 is based on settled seniority in all the cadres, which was never objected since 2014, which was not challenged or never objected by the petitioner. The petitioner cannot see re-fixation with effect from 17.02.2019, since the same was based on the existing Seniority of the year 2014 and 2018 in the cadre of Record Assistant and 2019 in the cadre of Junior Assistant. There was a break in service which may be treated as on duty, which cannot be constructed as providing seniority over and above the respondents 4 and 5. There was a break in service which may be treated as on duty, which cannot be constructed as providing seniority over and above the respondents 4 and 5. It is a fact that the respondents 4 and 5 are seniors to the petitioner in all the final seniority list, as such the petitioner cannot claim seniority over and above the respondents 4 and 5 being a Junior. In such circumstances, the question of re-fixing his seniority without challenge to such settled Seniority Lists cannot challenge the order of promotions given to the respondents 4 and 5 and that the writ petition is liable to be dismissed. It is further contended that the service of the respondents 4 and 5 are absorbed as Record Assistants vide proceedings dated 11.07.2011. The 3rd respondent being competent authority had passed orders retreating that the Seniority in the cadre of Record Assistant as existing by that time became final i.e Seniority of Record Assistants under Final Seniority Lists of 2014 and 2018 became final and the respondents 4 and 5 and petitioner as they stand are eligible for future benefits. Since such orders and Seniority Lists became final, the petitioner cannot seek any re-fixation at this stage, particularly in the cadre of Junior Assistant without regard to the settled seniority in the lower cadre. The respondents 4 and 5 got promoted as Junior Assistants vide proceedings dated 17.02.2019. In the said order, there were 15 persons got promoted as Junior Assistants and three more persons, who were juniors to these respondents were also promoted besides some other thereafter, except against respondents 4 and 5, there is no challenge to their promotions, who are juniors to the respondents 4 and 5. It is further contended that the order of promotion given in favour of the petitioner dated 22.08.2021 is conditional one i.e subject to outcome of court cases, while referring to C.C.No.143 of 2017, which was pending by that time. 8. It is further contended that the respondents 4 and 5 got promoted as Senior Assistants vide proceedings dated 12.09.2022, basing on Final Seniority List of Junior Assistant dated 13.05.2021. The respondents 4 and 5 have reported for duty as Senior Assistants on 12.09.2022 itself and working as such in the promoted post and that the said order of promotion was already given effect. But, the petitioner suppressed the same and obtained interim order. The respondents 4 and 5 have reported for duty as Senior Assistants on 12.09.2022 itself and working as such in the promoted post and that the said order of promotion was already given effect. But, the petitioner suppressed the same and obtained interim order. Hence, the writ petition is liable to be dismissed. 9. Perused the record. 10. Learned counsel for the petitioner vehemently argued the services of the petitioner and respondents 4 and 5 were regularized by the then Executive Officer on 11.07.2011, but the same was ratified by the Commissioner on 24.01.2019, as such the seniority list prepared in 2014 were not communicated to the petitioner, but communicated to the other regular employees working in the temple, therefore the petitioner could not file any objections. It is further argued that when his suspension period was regularized on 19.01.2022, the petitioner is fully eligible to get promotion on par with his juniors. Therefore, the petitioner got promotion as treated him as senior over the respondents 4 and 5. As such from the date their seniority has to be fixed as per date of birth as they are appointed/ regularized on the same day. 11. Whereas learned Senior Counsel for the respondents 4 and 5 vehemently opposed to allow the writ petition, as the official respondents without following due procedure has illegally promoted the petitioner. Further, the petitioner has obtained interim direction in this writ petition and during pending this writ petition, he was promoted as Senior Assistant in the existing vacancy vide proceedings dated 23.08.2023. Since the petitioner had promotion, he has no any loss or hardship as of now, but as far as the respondents 4 and 5 are concerned, they suffered huge loss at the hands of the petitioner, who wrongfully obtained promotion and challenging the impugned proceedings dated 12.09.2022. 12. It is an admitted fact that the petitioner and respondents 4 and 5 are appointed and their services were regularized on one and same day. But, it is the contention of the learned counsel for the petitioner that the age has to be taken into consideration for fixing the seniority. 12. It is an admitted fact that the petitioner and respondents 4 and 5 are appointed and their services were regularized on one and same day. But, it is the contention of the learned counsel for the petitioner that the age has to be taken into consideration for fixing the seniority. No doubt, the petitioner has not challenged the promotions, who are juniors to the respondents 4 and 5 and further the promotions to the post of Senior Assistant, given to the respondents 4 and 5 is based on settled seniority in all the cadres, but same was never objected since 2014. So also the petitioner has not challenged the proceedings dated 22.08.2021, where he was promoted to the post of Junior Assistant, though it got prospective in nature. So, this Court finds that there are latches on the part of the petitioner as well as official respondents. The respondents 4 and 5 got promoted as Senior Assistants vide proceedings dated 12.09.2022, basing on Final Seniority List of Junior Assistant dated 13.05.2021 and joined duty on 12.09.2022 as contended by the learned Senior Counsel for the respondents 4 and 5. 13. Therefore, viewing from any angle, though the petitioner is now working as Senior Assistant on promotion during pendency of this writ petition and that no injustice will be caused to the petitioner. Due to interim order is in force, the respondents 4 and 5 have no way to get their benefits as per rules. However, both the petitioner and the respondents 4 and 5 obtained promotions as Senior Assistants and they are working in 3rd respondent/ temple, therefore, nothing survives in this writ petition and no prejudice will be caused to either of the party. Hence, this Court finds no merit in the case of the petitioner at this juncture. 14. Having regard to the facts and circumstances of the case, upon perusal of the material available on record and considering the submissions of both the counsel, this Writ Petition is dismissed. Interim order granted by this Court dated 02.11.2022 passed in I.A.No. 1 of 2022 shall stands vacated. There shall be no order as to costs. 15. The miscellaneous applications pending, if any, shall also stand closed.