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2025 DIGILAW 418 (AP)

G. Appala Naidu v. State of Andhra Pradesh

2025-03-07

K.MANMADHA RAO

body2025
ORDER : The Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief: “….. to issue an appropriate Writ more in the nature of Writ of Mandamus declaring the orders passed by the 2 nd respondent in Memo No.24265/CS.I/2021, dated 8.4.2021 in rejecting the case of the petitioner for promotion to the post of DEE as illegal and arbitrary and runs contrary to the orders passed by the Division Bench of this Court in W.P.No.17258/2020 dt. 14.12.2020 and contrary to the judgment of the Supreme Court reported in 1996 (1) SCC 524 , 1994 (1) SCC 373 and consequentially declare that the petitioner is entitled for promotion from the date on which others were promoted w.e.f 3.1.2020 with all consequential attendant benefits….” 2. Brief facts of the case are that the petitioner appointed as Assistant Executive Engineer in A.P. Public Health and Municipal Engineering Services as direct recruitee on 26.06.2013. In view of the bifurcation of the State, keeping in view of the Policy of both the governments for Inter State Transfers vide Memo dated 07.08.2017 on making application Government of Telangana issued G.O.Rt.No.157, MA & UD Department, dated 13.03.2018 ordering Inter State Transfer on mutual grounds subject to taking last rank next to the last regular candidate. Even before that the State of A.P. issued G.O.Ms.No.73, MA & UD Department, affecting Inter State Transfer of Mohd.Sirajuddin on mutual basis accommodating the petitioner from Telangana to Andhra Pradesh. As per Inter State guidelines dated 07.08.2017 and the proceedings under which the petitioner was transferred to the State of A.P. categorically states that the petitioner should take last rank next to the last rank candidate. Accordingly, the Engineer-in-Chief on 30.01.2019 prepared Provisional Seniority List of AEEs/AEs (PH) of Zone-I to IV. In respect of Zone-I, the petitioner was shown at Serial No.3 after last regular recruitee candidate. The Serial No.1 is the regular candidate of Zone-I with 10.01.2014. Though the petitioner senior as per the date of appointment in view of the condition fixed in the interstate transfer orders, the petitioner was shown below No.1 and No.2. While so, on 03.09.2019 Final Seniority List of AEs and AEEs of Zone-I, II, III and IV was prepared. In respect of Zone-I though the petitioner’s name is to be shown at Serial No.3, the petitioner’s name was deleted from the list. While so, on 03.09.2019 Final Seniority List of AEs and AEEs of Zone-I, II, III and IV was prepared. In respect of Zone-I though the petitioner’s name is to be shown at Serial No.3, the petitioner’s name was deleted from the list. Hence, the petitioner submitted a representation dated 16.09.2019 to the 2 nd respondent to include his name in the final seniority list and place before the DPC for Deputy Executive Engineer (for short “DEE”). The respondents without showing petitioner’s name in seniority list, affected promotions to K.Sitharam Murthy, and NVSS Narayana vide orders dated 03.01.2020 from AEEs quota. The petitioner is next person in the cycle. Now the respondents are taking steps to effect promotions from DEEs to EEs, thereby the post of DEE will fall vacant. Earlier, the petitioner filed W.P.No.24265/2020 questioning the action of the respondent in not showing petitioner’s name in the Final Seniority List dated 03.09.2019 in Zone-I, after N.V.S.S.Narayana as per the Government circular dated 07.08.2017, keeping in view of the G.O.Rt.No.157, MA & UD Department, dated 13.03.2018 and G.O.Ms.No.73, MA & UD Department, dated 16.02.2018 as illegal and arbitrary. The respondents filed counter stating that as per G.O.Ms.No.452, MA & UD Department, dated 20.06.2017, the petitioner should have minimum 3 years service. Since the petitioner not having 3 years of service, his case cannot be considered. The question of providing 3 years minimum service in the same department in respect of the petitioner, one P.Jayadev who filed W.P.No.17258/2020 before a Division Bench of this Court with same subject matter. In the said petition, the issue raised was the length of service is different from minimum service. This Court, directed the respondents to consider the case of the petitioner there under for promotion to the post of DEE (PH) without granting seniority by considering the experience counting from the date of initial appointment for eligibility as per G.O.Ms.No.452, MA & UD Department, dated 20.06.2017. Thereafter, the petitioner I.A.No.1/2021 and this Court passed interim orders on 21.01.2021 for considering petitioner’s case keeping in view of the Division Bench judgement referred above for promotion to the post of DEE. Thereafter, the petitioner I.A.No.1/2021 and this Court passed interim orders on 21.01.2021 for considering petitioner’s case keeping in view of the Division Bench judgement referred above for promotion to the post of DEE. Though the issue is covered under the above Division Bench judgement, though the length of service from the date of promotion is to be taken into account as experience for counting the service, once again the 2 nd respondent ignored the orders of the Division Bench and rejected the case for promotion to DEE vide Memo No.24265/CS1/2021, dated 08.04.2021 declaring that petitioner is not eligible for promotion to the post of DEE without having minimum service quoting rule 33 (a) and 35(b). Aggrieved by the same, the present writ petition has been filed. 3. This Court, vide order, dated 07.05.2021, granted interim direction by suspending the operation of the order passed by the 2 nd respondent vide Memo No.24265/CS1/2021, dated 08.04.2021. 4. The 2 nd respondent filed counter affidavit denying the allegations made in the writ petition and stated that the Government vide Circular Memo No.9940/SPF&MC/2015, dated 07.08.2017, the Government of Andhra Pradesh & Telangana have issued certain joint guidelines for inter-state transfers in respect of the Zonal cadre employees between the state of Andhra Pradesh and the state of Telangana and it was clarified therein that, the transferred employees shall be assigned last rank in the new unit of appointment and also clarified that, the transferred employees should forgo seniority in the existing state as well as lien. The petitioner was transferred from the state of Telangana to the state of Andhra Pradesh at his request and he is allotted to Zone-I, as per his local status and accordingly, the petitioner joined in Zone-I on 21.03.2018. It is further stated that the Government vide Memo No.996193/C1/2019-MA, dated 04.10.2019 has clarified that the petitioner was joined in the successor state of Andhra Pradesh on inter-state transfer in the year 2018 from the state of Telangana as per his request and hence it is very clear that, the petitioner is junior to the Direct Recruitment- Assistant Executive Engineers, who were appointed and joined in the Department through APPSC in the year 2017 in the State of Andhra Pradesh. It is further stated that as per the Deputy Executive Engineer promotional rules issued by the Government vide G.O.Ms.No.452, MA Department, dated 20.06.2007, a person should have complete 3 years of service in the cadre of Assistant Executive Engineer. Accordingly, the seniority of the petitioner is to be counted from the date of Joining i.e., from 21.03.2018 FN in the cadre of Assistant Executive Engineer in the state of Andhra Pradesh on request transfer as per the joint guidelines issued by the state of Andhra Pradesh and Telangana vide Government Circular Memo No.9940/SPF&MC/2015, dated 07.08.2017. The petitioner has not completed 3 years of service as Assistant Executive Engineer as on 01-09-2010 (i.e., the date of commencement of the panel year 2019-2020) in the state of Andhra Pradesh after his joining and accordingly he is not eligible for promotion to the post of Deputy Executive Engineer as he has not completed minimum 3 years of physical service in the cadre of Assistant Executive Engineer in the state of Andhra Pradesh after his transfer/joining in the new state as on 01.09.2019. Hence, there are no rules to consider the case of the petitioner for promotion to the post of DEE without having minimum service in the cadre of Assistant Executive Engineer after joining in the state of Andhra Pradesh on inter-state transfer. Therefore, prays to dismiss the writ petition. 5. Heard Mr.P.V.Ramana, learned counsel for the petitioner and learned Assistant Government Pleader for Services-IV, for the respondents. 6. On hearing, learned counsel for the petitioner while reiterating the contents urged in the writ petition, submits that, as per Special Rules issued in G.O.Ms.No.452, MA & UD Department, dated 20.06.2007 the post of DEE is to be filled following Roaster between AEs and AEEs and every cycle of 16 vacancies of DEES are to be filled by AEs and AEEs and minimum service of 3 years was prescribed for promotion to DEE. He further submits that the 2 nd respondent without following the judgment of the Division Bench of this Court, passed the impugned order vide Memo No.24265/CS1/2021, dated 08.04.2021 rejecting the case of the petitioner for promotion to the post of DEE as illegal and arbitrary. 7. He further submits that the 2 nd respondent without following the judgment of the Division Bench of this Court, passed the impugned order vide Memo No.24265/CS1/2021, dated 08.04.2021 rejecting the case of the petitioner for promotion to the post of DEE as illegal and arbitrary. 7. To support his contentions, learned counsel for the petitioner placed reliance upon the decision of the Hon’ble Supreme Court reported in Union of India and others vs. C.N. Ponnappan , [ 1996 (1) SCC 524 ] , wherein the Hon’ble Apex Court held as follows: “The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retrial benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred.” 8. To support his contentions, learned counsel for the petitioner placed reliance upon the decision of the Hon’ble Supreme Court reported in Union of India vs. V.N. Bhat , [ 2003 (8) SCC 714 ] , wherein the Hon’ble Apex Court held as follows: “The question which, therefore, arises for consideration is as to whether the period of service rendered by the respondent in the Ministry of Defence should be wiped off for all purposes? The well settled principle of law that even in the case where the transfer has been allowed on request, the concerned employee merely loses his seniority but the same by itself would not lead to a conclusion that he should be deprived of the other benefits including his experience and eligibility for promotion.” Therefore, learned counsel for the petitioner while relying upon the above decision, prays to allow the writ petition. 9. 9. Per Contra, learned Assistant Government Pleader while reiterating the contents made in the counter affidavit and submits that, in the presentation dated 21.01.2021, the petitioner has reported that, he has completed 7 years of service in the cadre of Assistant Executive Engineer and eligible for promotion to the post of DEE and requested to consider his case for promotion to the post of Deputy Executive Engineer as per the orders of this Court dated 14.12.2020 in WP.No.17258/2020 considering his service from the composite state. He further submits that there are no provisions in G.O.Ms.No.452, MA Department, dated 20.06.2007 to consider promotions to the post of Deputy Executive Engineer basing on the experience gained by the petitioner without inclusion of name in the feeder cadre seniority list concerned. Hence, the petitioner is not eligible for promotion to the post of DEE without having minimum service in the cadre of Assistant Executive Engineer after joining in the state of Andhra Pradesh. The petitioner in WP.No.17258/2020 has also not been considered for promotion as DEE in the Department as he is also transferred from the State of Telangana to the State of Andhra Pradesh on request transfer along with the petitioner. He further submits that in compliance of order of this Court dated 04.03.2021 passed in W.P.No.24265/2020, speaking orders are issued to the petitioner on 08.04.2021. He further submits that, in view of the orders of this Court dated 14.12.2020 passed in W.P.No.17258/2020, the petitioner will be considered for the eligibility from the date of his joining in the Department i.e., 03.07.2013 in the composite state. For the purpose of seniority, his date of joining in the new state will be considered as 21.03.2018 and the petitioner will be placed at appropriate place as per the joint guidelines issued by the state of Andhra Pradesh and Telangana vide Government Circular Memo No.No.9940/SPF&MC/2015, dated 07.08.2017 and as per the clarification Memo issued by the Govt vide Memo No.996193/C1/2019-MA, dated 04.10.2019 and as per rule 35 (b) of Andhra Pradesh State and Subordinate Service Rules. 10. 10. To support his contentions, learned Assistant Government Pleader placed reliance upon the decision of the Hon’ble Supreme Court reported in Surender Singh Beniwal vs. Hukum Singh and others , [Civil Appeal No.2766 of 2009] wherein the Hon’ble Apex Court held as follows: “Since the respondent No.1 applied for a voluntary transfer, obviously, he has to be placed at the bottom of the seniority list of the Lecturers already working there.” 11. Perused the record. 12. It is pertinent to mention here that, Rule 33(a) of A.P. State and Subordinate Service Rules as follows: “The seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as a punishment be determined by the date of his first appointment to such service, class, category or grade.” 13. It is pertinent to mention here that, Rule 35(b) of A.P. State and Subordinate Service Rules as follows: “The seniority of a member of service, class or category, who is transferred on his own request from one unit of appointment to another unit of appointment shall be fixed with reference to the date of his joining duty in the later unit of appointment.” 14. The Division Bench of this Court has disposed of the writ petition vide order dated 14.12.2020 in W.P.No.17258 of 2020 with the following directions: “.... and directing the respondents to consider the case of the petitioner for promotion to the post of Deputy Executive Engineer [PH], if otherwise entitled to, but not for seniority, by considering the experience gained from the date of initial appointment, for eligibility, as per G.O.Ms.No.452 MA & UD Department, dated 20.06.2007. There shall be no order as to costs.” 15. As seen from the material on record, this Court observed that, the petitioner has joined in service as Assistant Executive Engineer on 26.06.2013 and in view of bifurcation of the state, the petitioner has requested for Inter State Transfer and the petitioner was transferred to State of Andhra Pradesh. Further, the Hon’ble Supreme Court has been categorically holding that in request transfer, the employee may lose his seniority but the experience gained should not be wiped out and he cannot be deprived of his benefit including his experience and eligibility for promotion. 16. Further, the Hon’ble Supreme Court has been categorically holding that in request transfer, the employee may lose his seniority but the experience gained should not be wiped out and he cannot be deprived of his benefit including his experience and eligibility for promotion. 16. Having regard to the facts and circumstances of the case and on considering the submissions of both the learned counsels and following the order passed by the Division Bench of this Court dated 14.12.2020 in W.P.No.17258 of 2020, this Court is inclined to dispose of the writ petition, setting aside the order of the 2 nd respondent dated 08.04.2021. 17. Accordingly, the Writ Petition is disposed of. The impugned order vide Memo No.24265/CS.I/2021, dated 08.04.2021 passed by the 2 nd respondent is hereby set aside. Further the matter is remanded back to the 2 nd respondent to consider the case of the petitioner afresh for promotion to the post of Deputy Executive Engineer, if otherwise entitled to, but not for seniority, by considering the experience gained from the date of initial appointment, for eligibility, as per G.O.Ms.No.452, MA & UD Department, dated 20.06.2017 and pass appropriate orders, strictly in accordance with law, within a period of four (04) months from the date of receipt of a copy of this order. No costs. 18. As a sequel, miscellaneous applications pending, if any, shall stand closed.