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2024 DIGILAW 1404 (AP)

Y. Hema Durgamba v. State of Andhra Pradesh

2024-10-03

K.MANMADHA RAO

body2024
JUDGMENT / ORDER : This writ petition is filed under Article 226 of the Constitution of India, for the following relief : "......to issue a writ or order or direction more particularly one in the nature of writ of mandamus declaring the action of the 2nd respondent in issuing proceedings in Rc.No.A1/1102634/2020, dated 23.07.2021 allowing the claim of the 4th respondent to treat her as Junior Assistant w.e.f. 15.02.2012 and consequential promotion orders if any granted by the 3rd respondent as bad, illegal, arbitrary, absurd, abuse of power, void, violative of principles of natural justice, without jurisdiction and violative of Articles 14, 16 and 21 of the Constitution of India, and consequentially, set aside proceedings dated 23.07.2021 including the promotion orders granted if any by the 3rd respondent and direct the respondent Nos.1 to 3 not to unsettle the settled things and pass..." 2. The case of the petitioner herein is that she was initially appointed as Junior Assistant, thereafter she was promoted as Senior Assistant in the year 2012 and finally she was promoted to the cadre of Superintendent in the year 2017 and she is presently working in the cadre of Superintendent in the 3rd respondent Devasthanam. The 4th respondent was initially appointed as Receptionist on NMR basis and thereafter she was permitted to be regularized as receptionist as per the proceedings of the 2nd respondent in D.Dis.No.A1/12309/05 dated 30.04.2005. Basing on the said proceedings, the then Executive Officer has issued proceedings in Rc.No.A1/6158/2004, dated 06.05.2005 regularizing the services of the 4th respondent as receptionist. Thereafter, the then Executive Officer has cancelled the 4th respondent regularization in the cadre of Receptionist basing on the G.O. Ms. No.1422, dated 25.07.2005 and basing on the note orders of the then Commissioner dated 23.12.2005 vide proceedings dated 30.12.2005. Aggrieved, by the same, the 4th respondent filed WP No.3719 of 2006 before this Court seeking continuation on regular basis and the said writ petition was allowed on 24.08.2017. Thereafter the 4th respondent has not submitted any applications or filed any appeals seeking conversion of Receptionist post as Junior Assistant or equivalent post as per Annexure-III of G.O. Ms. No.888 because there is no post of receptionist in the said rules. As such she continued as Receptionist. The main grievance of the petitioner is that a Final Seniority List of Junior Assistants was prepared on 15.02.2012 including the name of the 4th respondent. No.888 because there is no post of receptionist in the said rules. As such she continued as Receptionist. The main grievance of the petitioner is that a Final Seniority List of Junior Assistants was prepared on 15.02.2012 including the name of the 4th respondent. The petitioner alongwith other Junior Assistants have objections that there is no receptionist post in the cadre strength or in the rules and she was not converted from receptionist to Junior Assistant, as such she is not eligible for promotion to the post of the Senior Assistant. The objections were rightly considered and Final Seniority List was approved, thereafter promotions were also issued excluding the 4th respondent. Later, in the year 2018, again the Seniority List was prepared and objections were submitted stating that the 4th respondent was appointed as receptionist only in the time scale of Junior Assistant, but her duties are not that of Junior Assistant. As such her claim was rejected by the then Executive Officer in Memo in Rc.No.Al/3474/2016 dated 12.07.2018. This order was not challenged by the 4th respondent, neither she has obtained any orders to consider her case as Junior Assistant from the date of initial appointment in WP No.3719 of 2006 dated 24.08.2017. By the time, when the rejection proceedings dated 12.07.2018 were passed, the 4th respondent was having knowledge of the final orders passed in WP No.3719 of 2006, still she did not choose to challenge the rejection order dated 12.07.2018 and the same has become final. It is further stated that, after a lapse of 9 years, now the 2nd respondent without application of mind, without properly verifying the records, without properly verifying the rule position has issued the impugned proceedings dated 23.07.2021 to consider the case of the 4th respondent for promotion as per the Seniority List dated 15.02.2012. Basing on the same, the 3rd respondent has issued proceedings reviewing the rejection dated 12.07.2018 orders passed by her predecessors as long as back in the year 2018 without any jurisdiction. Challenging the proceedings of the respondent Nos.2 and 3, the present writ petition is filed. 3. Counter-affidavit has been filed by the respondent No.3. Basing on the same, the 3rd respondent has issued proceedings reviewing the rejection dated 12.07.2018 orders passed by her predecessors as long as back in the year 2018 without any jurisdiction. Challenging the proceedings of the respondent Nos.2 and 3, the present writ petition is filed. 3. Counter-affidavit has been filed by the respondent No.3. While denying the allegations made in the petition, inter alia, contended that the writ petitioner without exhausting alternative remedies without following procedure under the provisions of the A.P. Act 30 of 1987 got filed the present writ petition which is not maintainable in the eye of Law. Hence, the petition is liable to be dismissed in limini. It is stated that the petitioner filed the present writ petition is filed challenging the action of the 2nd respondent in issuing Proceedings in Rc.No.A1/11026(34)/2020, dated 23.07.2021 allowing the claim of the 4th respondent to treat her as Junior Assistant w.e.f. the date of her initial appointment and to extend consequential promotions on par with juniors w.e.f. 15.02.2012. The petitioner was initially appointed as Junior Assistant in the year 2006 on compassionate grounds and later promoted to the next higher cadres from time to time and presently working as Superintendent in the 3rd respondent Devasthanam. Further stated that as per the orders of the 2nd respondent in D.Dis.No.A1/12309/2005, dated 30.04.2005 the services of the 4th respondent was regularized initially as Receptionist in the time scale of Rs.3,290/- - Rs.6,550/-, in RPS 1993 which is applicable to Junior Assistant post. The name of the 4th respondent was included in the Seniority List of Junior Assistants communicated by the 3rd respondent Devasthanam in its Rc.No.A1/647/2011, dated 15.02.2012 and the petitioner was immediate junior to the 4th respondent as per the Final Seniority List of Junior Assistant communicated on 15.02.2012. It is stated that the petitioner was not challenged either at the time of communication of Provisional Seniority List inspite of opportunity given to her by calling objections and keep silent all these 9 years as she is getting all the promotion benefits. It is further stated that the request for further promotions of the 4th respondent has not been considered on par with the petitioner and other employees, even the petitioner was junior to the 4th respondent. It is further stated that the request for further promotions of the 4th respondent has not been considered on par with the petitioner and other employees, even the petitioner was junior to the 4th respondent. On this ground she has made an appeal before the Commissioner, Endowment Department with request to consider for promotion as per the Seniority List communicated on 15.02.2012. The 2nd respondent Commissioner allowed the statutory appeal filed by the 4th respondent and directed the 3rd respondent vide Rc.No.A1/11026(34)/2020, dated 23.07.2021 to treat her as Junior Assistant with effect from the date of her initial appointment as receptionist and extended consequential promotions on par with her juniors as per the Seniority List. Further it is stated that the Commissioner, Endowments Department has given examples in his order the Executive Officer promoted one Sri S.S. Rama Murthy, Mike Operator in the cadre Record Assistant, another one Sri Y.V. Rao, Caretaker in the Record Assistant to the cadre of Junior Assistants. In this case too, there are no specific orders of conversion. In view of the Rule position, the Executive Officer of the subject Temple cannot defer her case for promotion on the objections raised by some Junior Assistants de hors Rules. Finally, the Commissioner, Endowments opined on the appeal filed by the 4th respondent was allowed with a direction to the Executive Officer 3rd respondent to treat her as a Junior Assistant. Accordingly, her seniority was protected in the cadre of Junior Assistant from the date of Final Seniority List communicated on 15.02.2012 by the then Executive Officer of this Devasthanam and effected subsequent promotions notionally upto Superintendent Cadre. In pursuance of the impugned proceedings issued by the 2nd respondent, the 3rd respondent herein has implemented the same and promoted the 4th respondent to the next higher cadres notionally on par with the petitioner as per the Final Seniority List dated 15.02.2012. 4. Counter-affidavit has been filed by the respondent No.4. While denying the allegations made in the petition contended that, while the 4th respondent is working in Simhachalam Devasthanam, the Hon'ble Court has been pleased to allow the writ petition vide order dated 24.08.2017, wherein the cancellation orders of regularization of this respondent were set aside with all consequential benefits. Further upheld her appointment and held that she is entitled for all consequential benefits. Further upheld her appointment and held that she is entitled for all consequential benefits. Thereafter the Executive Officer of Sri Durga Malleswara Swamy Varla Devasthanam, the 3rd respondent issued another Seniority List Rc.No.A1/3474/2016 dated 23.05.2018 wherein it was stated that 4th respondent is eligible for Senior Assistant post w.e.f. 24.08.2017 on which date the WP No.3719/2006 was disposed of as per the Seniority List in Rc.No.A1/647/2011 dated 15.02.2012, which was misinterpretation of the orders of the Hon'ble Court. Thereafter, the 4th respondent made a representation to extend all consequential benefits including her seniority as per the Court orders vide orders dated 24.08.2017. The then Executive Officer deferred from the Final Seniority List of Junior Assistants due to the objections of some Junior Assistants and denied the 4th respondent from promotion to the cadre of Senior Assistant even after this respondent's name was included in the Final Seniority List in the years 2012 and 2018 and even though she was working as Junior Assistant in SVLN Devasthanam, Simhachalam, Visakhapatnam. Thereafter, the 4th respondent has been transferred to her parent institution as Junior Assistant, as per the orders of the Commissioner, Endowments Department vide Rc.No.A1/11023(42)/6/2020 dated 04.08.2020, accordingly she was relieved vide Rc.No.B1/2125/2020 dated 04.08.2020 once the petitioner was regularized in the post of Receptionist in the category of Junior Assistant, by drawing the same pay scale, therefore the benefits of seniority and promotion have to be extended to the petitioner, as per the Final Seniority List dated 15.02.2012 and as per the judgement of this Hon'ble High Court in WP No.3719/2006. The said writ petition was allowed in favour of 4th respondent, which attained finality. Therefore, prayed to dismiss the writ petition. 5. Heard Sri D.V. Sasidhar, learned Counsel appearing for the petitioner and Ms. P. Sudeepthi, learned Assistant Government Pleader for Endowments appearing for the respondents. 6. On hearing, learned Counsel for the petitioner while reiterating the averments made in the petition, contended that, at the outset, the impugned proceedings dated 23.07.2021 is liable to be set aside on the sole ground of violation of principles of natural justice as the same were passed behind the back of the petitioner and it is the petitioner whose position, seniority and promotion is disturbed/affected by way of the impugned orders. As such without issuing notice and affording an opportunity of being heard, passing the impugned orders is illegal, arbitrary and void. As such without issuing notice and affording an opportunity of being heard, passing the impugned orders is illegal, arbitrary and void. He further submits that the impugned proceedings are issued without having proper knowledge of applicability of rules and rules in vogue, in a haste after the 2nd respondent being transferred and posted as Director, Handlooms and Textiles vide G.O. Rt. No.1230 dated 23.07.2021 the present impugned proceedings are issued for the reasons best known to him. Hence the impugned proceedings dated 23.07.2021 issued by the 2nd respondent is void, illegal and arbitrary and liable to be set aside. He further submits that the 2nd respondent does not have the jurisdiction to entertain any appeal after lapse of 90 days from the date of any order or proceedings, against which the application is filed as per Section 92 of Act 30/87. In the instant case, the representation dated Nil is taken on record as an appeal and orders are passed. As such without mentioning under which provision the appeal is entertained and under what provision orders are passed, the impugned proceedings are hollow proceedings and the same is liable to be set aside. 7. Learned Counsel for the petitioner mainly contended that a bare reading of the proceedings makes it clear, the same are approved on 23.07.2021 at 18:25:33 (6:25 p.m.), which are after the standard office timings of the 2nd respondent. Further that too, the 2nd respondent was transferred from his original position on 23.07.2021 with immediate effect. Further, coming to the observations made in the impugned proceedings are concerned, the applicability of the Subordinate Service Rules to the case of the 4th respondent is misconceived and made without application of mind and without proper verification of the rules in vogue. As per Annexure-III of the G.O. Ms. No.888 dated 08.12.2000, there is no post of receptionist, as such treating her as Junior Assistant applying the Subordinate Service Rules, when there are separate set of rules framed for temple employees is absurd and illegal. He further submits that, as per Rule 37 of G.O. Ms. No.888 dated 08.12.2000, the classes and categories of employees of eight institutions shall be as sanctioned by the Commissioner from time to time, which means unless there is a post in Annexure-III. 8. He further submits that, as per Rule 37 of G.O. Ms. No.888 dated 08.12.2000, the classes and categories of employees of eight institutions shall be as sanctioned by the Commissioner from time to time, which means unless there is a post in Annexure-III. 8. To support his contentions, learned Counsel for the petitioner has placed reliance on a decision of the Hon'ble Supreme Court reported in N.K. Durga Devi v. Commissioner of Commercial Taxes, Hyderabad and others, MANU/SC/1863/1997, wherein the Apex Court held that "it is an accepted position that before G.O. Ms. No.569 was issued, neither notice nor hearing was given to the appellant who is directly affected by G.O. No.569" and also held that "The position in law is quite clear. A relaxation order which affects rights of third parties, if passed in violation of the principles of natural justice and without giving a hearing to the affected parties would be void, or in any event, unenforceable in law. The impugned Government Order No.569 dated 22.05.1986 is, therefore, set aside." 9. Learned Counsel for the petitioner further submits that as per the Circular Memo No.57759/SER.A/2004-1 of GA (Ser.A) Department, dated 20.05.2004 and the decision of B.S. Bajwa and others v. State of Punjab and others, (1998) 2 SCC 523 and on the basis of the said judgment, it is concluded in clause (5) of the Circular Memo as under : "5. Government direct that in deleting with the cases for fixing the seniority the procedure and the rules prescribed in Andhra Pradesh State and Subordinate Service Rules or in Special Rules governing the post shall be followed. No request for revision of seniority for a period which is more than 3 years old shall be considered. The Seniority List in each category shall be communicated as and when the employee completes the prescribed period of probation in the respective category." 10. In view of the above, no claim can be made for seniority after a lapse of three years. Further the settled matters cannot be unsettled. Therefore, learned Counsel requests this Court to pass appropriate orders. 11. Per contra, learned Counsel appearing for the respondents, while reiterating the contents made in the counter-affidavits, contended that, upon considering the appeal filed by the 4th respondent against deferment of her case for promotion and Seniority List vide proceedings dated 12.07.2018, the 2nd respondent issued impugned proceedings dated 23.07.2021. Therefore, learned Counsel requests this Court to pass appropriate orders. 11. Per contra, learned Counsel appearing for the respondents, while reiterating the contents made in the counter-affidavits, contended that, upon considering the appeal filed by the 4th respondent against deferment of her case for promotion and Seniority List vide proceedings dated 12.07.2018, the 2nd respondent issued impugned proceedings dated 23.07.2021. Infact by passing the above said proceedings dated 23.07.2021, the rules applicable to the Junior Assistant have been categorically examined and finally issued the impugned orders dated 23.07.2021, with directions to treat the 4th respondent as Junior Assistant w.e.f. the date of her initial appointment as Receptionist and to extend the consequential promotions, on par with her Juniors, as per the Final Seniority Lists in Rc.No.A1/647/2011 dated 15.02.2012, which is in tune with the final orders of this Hon'ble Court in WP No.3719/2006, thereafter the 3rd respondent implemented the orders issued by the 2nd respondent. Therefore, the present writ petition filed is not maintainable as the writ petitioner neither questioned the Seniority Lists dated 15.02.2012 nor the orders made by this Hon'ble Court in WP No.3719/2006. 12. Learned Counsel for the respondents submits that the Final Seniority List dated 15.02.2012 was never challenged by the writ petitioner, though this 4th respondent was placed above her in the category of Junior Assistant. Once such seniority has become final, the writ petitioner cannot question the same after 10 years. He further submits that even the rules issued vide G.O. Ms. No.888 Revenue (Endowments) dated 08.12.2000, categorically specifies under Rule 37 and the classes and categories of the employees of the 8 institutions mentioned under Rule 37 shall be as sanctioned by the Commissioner from time to time and Rule 38 further confers power on the Commissioner of Endowments i.e., 2nd respondent to fix cadre strength of each class and category of posts in each of the 8 Institutions. In view of the above provisions, depending upon the need and workload the Commissioner can classify and categorize the employees and by exercising such powers only the petitioner was absorbed in a sanctioned post of the petitioner in the category of Junior Assistant. In view of the above provisions, depending upon the need and workload the Commissioner can classify and categorize the employees and by exercising such powers only the petitioner was absorbed in a sanctioned post of the petitioner in the category of Junior Assistant. Therefore 4th respondent, since her date of absorption has been working in the category of Junior Assistant and merely because this respondent discharged duties of Receptionist, at the time of absorption, it cannot be said that this respondent is not working as Junior Assistant. He further submits that after transfer of this 6th respondent to various Institutions, discharging duties in the post of Junior Assistant and as part of it, her services were utilized as Receptionist. Therefore, the contention of the writ petitioner that the 6th respondent is not in the cadre of Junior Assistant is false and baseless. Therefore, prayed to dismiss the writ petition. 13. Learned Counsel for the respondents has placed reliance on a decision of the Hon'ble Supreme Court reported in State Bank of Patiala and others v. S.K. Sharma, (1996) 3 SCC 364 , wherein it was held that : Now, coming back to the illustration given by us in the preceding paragraph, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise. We may summarise the principles emerging from the above discussion. [These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee] : (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/ departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. 14. In another case reported in Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and others, (1999) 8 SCC 16 , wherein it was held that : "...Therefore, the question is whether the order of the Member of Board of Revenue should be quashed on this ground. If the order is set aside, result would be that the notice directing the appellant to refund the additional amount of compensation assessed at ten times of net income would have to be quashed. In other words, the earlier re-assessment of compensation made by giving ten times of net income would revive. If under the law the appellant is not entitled to get compensation more than three times of the net income it would amount to restoring an illegal order..." 15. On hearing the submissions of both the learned Counsels and on perusing the material on record, this Court observed that, the contention of the learned Counsel for the petitioner is that as per the decision of the Hon'ble Supreme Court in B.S. Bajwa's case (supra), no claim can be made for seniority after a lapse of three years. Moreover, the settled matters cannot be unsettled. After granting promotion to the petitioner as Senior Assistant in the year 2012, the petitioner was further promoted as Superintendent in the year 2017. Now, after lapse of 9 years, without converting the services of receptionist as Junior Assistant and without granting promotion to her as Senior Assistant, now the 4th respondent is promoted to the post of Superintendent, which is prejudicial to the petitioner's service benefits. Further contention is that, if any promotion is granted basing on the 2nd respondent's proceedings dated 23.07.2021 it cannot be done abruptly, a Provisional Seniority List has to be prepared including 4th respondent name, objections have to be called for, they have to be considered and Final Seniority List has to be issued and thereafter promotion has to be granted. 16. In view of the foregoing discussion, this Court is of the view that, the position in law is quite clear. 16. In view of the foregoing discussion, this Court is of the view that, the position in law is quite clear. A relaxation order which affects rights of third parties, if passed in violation of the principles of natural justice and without giving a hearing to the affected parties would be void, or in any event, unenforceable in law. Further, as per Circular Memo dated 20.05.2004 and the decision of B.S. Bajwa's case (supra), no claim can be made for seniority after a lapse of three years and also the settled matters cannot be unsettled. Therefore, this Court is of the view that, since the petitioner has already got promotion as Superintendent and now she is continuing. Insofar as promotion of 4th respondent is concerned, whenever, she gets promotion, the respondents authorities may consider the same and pass appropriate orders. 17. With the above observation, the writ petition is disposed of. There shall be no order as to costs. 18. As a sequel, all the pending miscellaneous applications shall stand closed.