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2024 DIGILAW 778 (TS)

M. Anantaraju v. District Educational Officer

2024-09-21

T.MADHAVI DEVI

body2024
ORDER : (T. Madhavi Devi, J.) : In this Writ Petition (TR), the petitioner is seeking to call for the records relating to the proceedings Rc.No.3150/B1/2014 dt.09.01.2015 issued by the 1st respondent and not converting the post of School Assistant (English) from Scheduled Caste (Women) to Scheduled Caste (General) in terms of G.O.Ms.No.2, Social Welfare (SW.ROR1) Department, dt.09.01.2004 and to quash the same as illegal, arbitrary, unjust and contrary to the rules and to declare that the petitioner is entitled for fixation of notional seniority with effect from 27.09.2012 in the category of School Assistant (English) as per the seniority list dt.25.09.2012, instead of his actual promotion date i.e., dt.17.06.2013 with all consequential benefits and to pass such other order or orders. 2. Brief facts leading to the filing of the present Writ Petition (TR) are that the petitioner was initially appointed as a Secondary Grade Teacher during the year 2008 and he belongs to SC community. He was eligible and qualified for promotion to the post of School Assistant (English) as per the Special Rules issued in G.O.Ms.No.11 dt.23.01.2009. The 1st respondent prepared seniority list of S.G.Ts., who are eligible for promotion to the post of School Assistant (English) in Government management schools on 25.09.2012 and the petitioner’s name was shown at Sl.No.15. Promotion counseling was conducted on 27.09.2012, wherein the petitioner has attended and participated along with other candidates. It is submitted that one vacancy of School Assistant (English) was earmarked for SC (Women) but since no SC (Women) candidate was available to be promoted to the said post, the petitioner being the next SC candidate eligible, i.e., SC (Male) candidate and also since his name included in the seniority list at Sl.No.15, he ought to have been considered for promotion to the said post. Therefore, the petitioner immediately made a representation to the concerned authorities to consider his case for promotion by converting SC (Women) post to SC (General) in accordance with G.O.Ms.No.2, Social Welfare (SW.ROR1) Department, dt.09.01.2004. However, the respondents did not consider the case of the petitioner and he was promoted as School Assistant (English) subsequently on 17.06.2013. Therefore, the petitioner submitted his representation to the Collector for notional promotion with effect from 27.09.2012. But since the same was not disposed of, the petitioner filed O.A.No.6248 of 2014 before the Andhra Pradesh Administrative Tribunal (APAT). A counter affidavit has also been filed by the respondents. Therefore, the petitioner submitted his representation to the Collector for notional promotion with effect from 27.09.2012. But since the same was not disposed of, the petitioner filed O.A.No.6248 of 2014 before the Andhra Pradesh Administrative Tribunal (APAT). A counter affidavit has also been filed by the respondents. Vide interim orders dt.29.10.2014, the Tribunal directed the respondents to consider the representation of the petitioner dt.10.06.2013. The respondents, however, rejected the representation of the petitioner vide proceedings dt.09.01.2015 and challenging the said rejection order, the petitioner has amended his prayer in the O.A. After abolition of APAT, the matter has been transferred to the High Court and renumbered as W.P. (TR) No.2947 of 2017. 3. Learned counsel for the petitioner, while reiterating the above contentions, submitted that as per G.O.Ms.No.2, Social Welfare Department, dt.09.01.2004, wherever a post is earmarked for SC (Women), but SC (Women) candidate is not available, the said post shall be filled up with the same group of SC (Male) candidate as that of SC (Women) to which it was originally earmarked. It is submitted that at the relevant point of time, when the G.O. was issued, there was sub-categorization of SC candidates, but subsequently, consequent to the judgment of the Hon’ble Supreme Court, categorization of SC candidates has been removed and if any post which is earmarked to SC (Women) could not be filled up with SC (Women) candidate, the same ought to have been filled up with SC (Male) candidate. He submitted that in the case before this Court, the vacancy has arisen on 25.09.2012 when the seniority list was prepared and promotions were given on 27.09.2012. Therefore, when SC (Women) candidate was not available for the earmarked post, it should have been filled up with the next available SC (General) candidate, i.e., the petitioner herein. Instead, the respondents have given promotion to the petitioner with effect from 17.06.2013. He submitted that Rule 22-A of the Telangana State and Subordinate Service Rules, 1996 also provides for conversion of SC (Women) roster point to SC (General) if any qualified person is not available for filling up of the said vacancy. He therefore prayed for notional seniority as School Assistant (English) with effect from the date of vacancy, i.e., 27.09.2012. 4. He submitted that Rule 22-A of the Telangana State and Subordinate Service Rules, 1996 also provides for conversion of SC (Women) roster point to SC (General) if any qualified person is not available for filling up of the said vacancy. He therefore prayed for notional seniority as School Assistant (English) with effect from the date of vacancy, i.e., 27.09.2012. 4. Learned Government Pleader for Services-I, however, supported the speaking order dt.09.01.2015 and submitted that paragraph 13 of G.O.Ms.No.2, Social Welfare (SW.ROR1) Department, dt.09.01.2004 would be available in this case and since SC (Women) roster point could not be filled up, it had to be carried forward to the next notification and in the next notification, the SC (Women) roster point was converted to SC (General) category and the petitioner has been promoted to the said post on 17.06.2013. Therefore, according to him, the promotion of the petitioner has been in accordance with the rules. 5. Having regard to the rival contentions and the material on record, this Court finds that the only issue in this Writ Petition (TR) is as to when the SC (Women) roster point can be converted to SC (General) category. Rule 22 of the Telangana State and Subordinate Service Rules, 1996 prescribes special representation (reservation) for appointments to a service, class or category in favour of Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes, Women, Persons with Disability, Meritorious Sportsman, Ex-Servicemen and such other categories both in direct recruitment and also in the matter of promotion and appointment by transfer. Rule 22-A prescribes women reservation in appointments both in direct recruitment as well as in the matter of promotions. Sub-Rule (4) thereof and the Proviso thereunder refer to the matter of promotion and appointment by transfer. Rule 22-A prescribes women reservation in appointments both in direct recruitment as well as in the matter of promotions. Sub-Rule (4) thereof and the Proviso thereunder refer to the matter of promotion and appointment by transfer. For ready reference, the relevant provision is reproduced as under: “(4) In the matter of promotion and appointment by transfer involving promotion to posts for which women and men are equally suited and where the cadre strength of posts is more than five, there shall be reservation to women to an extent of 33-1/3% in favour of Scheduled Castes and Scheduled Tribes: Provided that where no eligible women candidate is available to fill up the roster point earmarked to them, the vacancy shall be filled up with male SC/ST candidates as the case may be.” Sub-Rule (4) and the Proviso thereunder have been brought into the Rules vide G.O.Ms.No.449, General Administration (Services-D) Department, dt.15.09.2009. G.O.Ms.No.2, Social Welfare (SW.ROR1) Department, dt.09.01.2004 has been issued prescribing the policy of providing rule of reservation in promotions in favour of Scheduled Castes and Scheduled Tribes. Paragraph 8 thereof refers to eligibility of candidates as under: “Eligibility of Candidates : Reservation in promotion in favour of Scheduled Castes and Scheduled Tribes shall be applicable to those candidates who are fully qualified and eligible to hold the posts as per the existing Rules and guidelines. If no qualified and eligible candidate available the vacancy shall be carried forward.” As the learned Government Pleader for Services-I referred to paragraph 13 in G.O.Ms.No.2 dt.09.01.2004 in respect of carry forward vacancies, the said paragraph is also reproduced as under: “Carry forward vacancies : Regarding carry forward of vacancies, if no qualified candidates are available, the following procedure shall be followed. In case qualified Scheduled Caste/Scheduled Tribe candidates are not available for a particular panel year the vacancy shall be carried forward to the subsequent year. In the second year if Scheduled Caste/ Scheduled Tribe candidates are not available, the vacancies or points meant for Scheduled Caste/Scheduled Tribe candidates may be filled up by candidates from the feeder category based on merit and seniority. The number of such vacancies meant for Scheduled Caste and Scheduled Tribe should be carried forward and filled up first in the immediate subsequent year with Scheduled Caste/Scheduled Tribe candidates.” 6. The number of such vacancies meant for Scheduled Caste and Scheduled Tribe should be carried forward and filled up first in the immediate subsequent year with Scheduled Caste/Scheduled Tribe candidates.” 6. Therefore, it can be seen that after issuance of G.O.Ms.No.2 dt.09.01.2004, the Government has amended Rule 22-A of the Telangana State and Subordinate Service Rules, 1996 vide G.O.Ms.No.449 dt.15.09.2009 in accordance with G.O.Ms.No.2 dt.09.01.2004. The G.O. specifically refers to reservation for women and it also clarifies that where the post is earmarked for SC (Women) and if an eligible SC (Woman) candidate is not available, then the vacancy shall be filled up with the same group of SC (Male) candidate also as that of SC (Women) to which it was originally earmarked and only in the cases where there are no eligible candidates, either male or female, for the relevant panel year, the vacancy shall be carried forward to the next year. This being the legal position, the respondents ought to have considered the case of an SC (Male) candidate when SC (Woman) for the post of School Assistant (English) was not available. The fact that the petitioner was promoted in the next promotion counselling and has been promoted with effect from 17.06.2013 also makes it abundantly clear that the only eligible candidate available was the petitioner. Even if the contentions raised in the speaking order dt.09.01.2015 are to be taken into consideration, i.e., if the eligible SC (Woman) candidate was not available, the respondents would have to convert the said roster point to SC (General) candidate and thereafter consider all eligible SC (General) candidates for the said post, the respondents ought to have granted promotion to SC (General) candidate with effect from the date on which the vacancy was notified for SC (Women) candidates. In this case, the said date is 27.09.2012. The administrative delay in converting the SC (Women) roster point to SC (General) category cannot be the reason for promoting the petitioner from the next date of promotion counselling, i.e., 17.06.2013. The petitioner had participated in the promotion counselling held on 27.09.2012 and was also found to be qualified and eligible for promotion and was placed at Sl.No.15. 7. In view thereof, the proceedings Rc.No.3150/B1/2014, dt.09.01.2015 issued by the 1st respondent is set aside and the respondents are directed to accord notional promotion and seniority to the post of School Assistant (English) with effect from 27.09.2012. 7. In view thereof, the proceedings Rc.No.3150/B1/2014, dt.09.01.2015 issued by the 1st respondent is set aside and the respondents are directed to accord notional promotion and seniority to the post of School Assistant (English) with effect from 27.09.2012. 8. The Writ Petition (TR) is accordingly allowed. No order as to costs. 9. Pending miscellaneous petitions, if any, in this Writ Petition (TR) shall also stand closed.