Andhra Pradesh High Court - Amravati
M.Balaraju, vs Sri.M.T.Kishna Babu, on 4 October, 2024
Author: R. Raghunandan Rao
Bench: R Raghunandan Rao
APHC010186742023 IN THE HIGH COURT OF ANDHRA
PRADESH
AT AMARAVATI [3488]
(Special Original Jurisdiction)
FRIDAY,THE FOURTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO
THE HONOURABLE SRI JUSTICE HARINATH.N
WRIT PETITION NO: 9620/2023
Between:
Anem Veera Raju and Others ...PETITIONER(S)
AND
The High Court Of Andhra Pradesh and ...RESPONDENT(S)
Others Counsel for the Petitioner(S):
1. MANOJ KUMAR BETHAPUDI Counsel for the Respondent(S):
1. P S P SURESH KUMAR
2. KALYAN C R Dt: 04.10.2024 (per Hon'ble Sri Justice R. Raghunandan Rao) Heard Sri M. Vijay Kumar, learned Senior Counsel appearing on behalf of Sri Manoj Kumar Bethapudi, learned counsel for the petitioners 2 and Sri P.S.P Suresh Kumar and C.R. Kalyan, learned counsel for respondents.
2. The 1st petitioner was appointed as an attender in the year 1988 and 2nd petitioner was appointed as attender in the year 2001. In the course of their service, they were promoted from time to time. The details of these would not be necessary for the purposes of this writ petition. It would suffice to start with the promotion of the petitioners as Stenographer Grade-III by the 2nd respondent-District Judge, by proceedings in PR.No.5 of 2017 dated 03.02.2017. After a period of two years, the petitioners were further promoted as Stenographer Grade-II, by proceedings in PR.No.32 of 2019 dated 18.05.2019 by the 2 nd respondent. Subsequently, proceedings bearing PR.No.28 and 29, dated 13.02.2020 were issued regularizing the services of the 1st petitioner as Stenographer Grade-II and his probation was also declared under Rule 13 of the Andhra Pradesh Judicial Ministerial and Subordinate Service Rules, 2019. At that stage, the 2nd respondent again issued proceedings dated 21.03.2020 reverting both the petitioners to the post of Stenographer Grade-III. Aggrieved by the said order of reversion, the petitioners approached this Court, by way of W.P.No.8436 of 2020, which came to be allowed, on 13.08.2020, on the ground of violation of 3 principles of natural justice, and the matter was remanded back to the 2nd respondent.
3. It is contended that the petitioners came to know, during the pendency of the above writ petition, on account of the papers served on them, that they had been reverted on the representation of the 3rd respondent to the 1st respondent who had directed the 2nd respondent by order, dated 14.03.2020, to revert the petitioners. Upon coming to know these facts, the petitioners moved W.P.No.19674 of 2020 questioning the proceedings, dated 14.03.2020, of the 1st respondent. This Court set aside the said proceedings, dated 14.03.2020, by an order dated 13.08.2020.
4. Immediately thereafter, the petitioners moved the 2nd respondent, by way of a representation, dated 21.08.2020, for restoring them as Stenographer Grade-II. The 2nd respondent issued a notice, dated 28.09.2020, to the petitioners, to show cause why they should not be reverted from the category of Stenographer Grade-II to the Stenographer Grade-III. After receiving the reply of the petitioners, the 2 nd respondent again issued a notice dated 01.11.2021 granting personal hearing to the petitioners on 06.11.2021. In a parallel proceeding, the 2nd respondent issued a gradation list of Grade-II and Grade-III 4 Stenographers on 30.12.2021 in which the names of the petitioners were not included in the list of Stenographers Grade-II while the name of the 3rd respondent was included.
5. As their request for being promoted to Grade-II was not being considered, further representations were made by the petitioners for restoration of their seniority. As no orders were being passed, the petitioners again filed W.P.No.7271 of 2022 questioning the inaction of the 2nd respondent, in restoring the petitioners, as Stenographers Grade- II. This writ petition was disposed of by this Court, on 10.08.2022, with a direction to the 2nd respondent to pass appropriate orders within six weeks. Thereupon, the 2nd respondent issued a fresh notice dated 06.10.2022, and after considering the response of the petitioners and detailed brief submitted on 14.10.2022, had issued proceedings dated 21.10.2022 holding that the earlier proceedings dated 21.03.2022 issued by the 2nd respondent reverting the petitioners to the post of Stenographer Grade-III holds good.
6. The petitioners being aggrieved by these proceedings, as well as the issuance of the gradation list, approached this Court, by way of the present writ petition, for setting aside to orders of the 2nd respondent dated 21.10.2022 and for a consequential declaration that the petitioners 5 are entitled to be restored as Stenographer Grade-II with monetary benefits with effect from 18.05.2019.
7. Upon notice, the respondents 1 and 2 have filed a counter affidavit and 3rd respondent has filed a separate counter affidavit.
8 Sri M. Vijay Kumar, the learned Senior Counsel for Sri Manoj Kumar Bethapudi, learned counsel for the petitioners would submit that the petitioners had been promoted to the post of Stenographer Grade-III on 03.02.2017 and their probation, upon completion, was declared on with effect from 08.12.2018 while the 3rd to 7th respondents had joined as direct recruits, as Stenographer Grade-III on 22.06.2016 and completed their probation with effect from 22.06.2018 and consequently the petitioners should be treated as seniors to the 3rd to 7th respondents as they had completed their probation in the year 2018, after the petitioners had completed their probation.
9. The learned senior counsel would draw the attention of this Court to the Rule which stipulates that the period of probation for a promotee is a continuous period of service of one year within a maximum of two years while the period of probation for a direct recruit is two years of continuous service within a period of three years. This would mean that the petitioners would be senior to the respondents 3 to 7, whether the 6 actual period of probation is taken into account or the outer limit within which the probation is required to be completed is taken into account. He would submit that in such circumstances, the action of the 2nd respondent in issuing a gradation list showing the petitioners to be junior to the respondents 3 to 7 and reverting the petitioners to Stenographer Grade-III is also impermissible.
10. Sri P.S.P. Kumar, learned counsel for respondents 1 and 2 and Sri C.R. Kalyan appearing for 3rd respondent would submit that the said contentions are not tenable.
11. The facts, according to Sri P.S.P. Kumar, as contained in the counter affidavit, filed by respondents 1 and 2 are that the petitioners had been permitted on a temporary basis, in accordance with Rule 27 of the Andhra Pradesh Judicial Ministerial Service Rules, 2003. He would also draw the attention of this Court to Rule 27(1) and 27(4) which read as follows:
27(1) Temporary Promotions:
I) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a higher category of the service by promotion from a lower category and there would be undue delay in making such promotion in accordance with these rules the appointing authority may promote a person otherwise than in accordance with these rules, temporarily, 7 until a person is promoted in accordance with these rules.
Such promotion shall not except with the specific permission of the High Court, exceed a period of six months. The High Court may grant such permission only for stated reasons and in very exceptional cases without prejudice to the normal clams of any other employees.
(4) A person promoted under sub-rule (I) shall not be regarded as a probationer in the higher category or be entitled by reason only of such promotion to any preferential claim to future promotion to such higher category. If such person is subsequently promoted to the higher category in accordance with these rules, he shall commence his probation, if any, in such category from the date of such subsequent promotion or from such earlier date as the appointing authority may determine.
12. The learned counsel submit that, the proceedings of the 2nd respondent, dated 03.02.2017, relied upon by the petitioners, show that the petitioners had been promoted on a temporary basis and cannot count their period of service from that date. It is further submitted that the respondents 3 to 7 were issued appointment letters, as direct recruits, as Stenographers Grade-III on 17.06.2016 and their probation was declared w.e.f 18.06.2018.
13. Sri P.S.P. Suresh Kumar draws the attention of this Court to Rule 19 of the Andhra Pradesh Ministerial Services Rules 8 2019 which stipulates that the seniority of a person in a category shall be determined by the date of commencement of his/her service including the period which counts towards probation. He would submit that this rule requires seniority of a person to be determined on the basis of his first appointment to a particular post.
14. As the respondents 3 to 7 were appointed on 17.06.2016 while the petitioners were given temporary promotion as on 03.02.2017, the respondents 3 to 7 would have to be treated as senior to the petitioners herein. He also relies upon a Judgment of the Hon'ble Supreme Court in State of Bihar and others vs Sri Akhouri Sachindra Nath and Others1.
15. Shorn of all details, the seniority of the petitioners vis-à- vis the respondents 3 to 7 would have to be determined in accordance with Rule 19 of the Andhra Pradesh Judicial Ministerial Service Rules, 2019. The date of appointment of respondents 3 to 7 is 17.06.2016 in the post of Stenographer Grade-III. The petitioners were permitted, on a temporary basis, to the post of Stenographer Grade No.III only on 03.02.2017. Though the probation of the petitioners were declared even before that of respondents 3 to 7, 1 AIR 1991 SC 1244 9 Rule 19 requires the first date of appointment to be taken into consideration.
16. In such a case, it is the respondents 3 to 7 who would be senior to the petitioners in the post of Stenographer Grade-III. Consequently, the reversion of the petitioners to accommodate the 3rd respondent, who is senior to them cannot be faulted. The Hon'ble Supreme Court in State of Bihar and others vs Sri Akhouri Sachindra Nath and Others held as follows:
"In the instant case, the promotee respondent Nos. 6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when the respondent Nos. 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over the respondent Nos. 1 to 5. It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter-se amongst the Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law the respondent Nos. 6 to 23 can not be made senior to the respondent Nos. 1 to 5 by the impugned Government orders as they entered into the said Service by promotion after the respondent Nos. 1 to 5 were directly recruited in the quota of direct recruits. The judgment of the High Court quashing the impugned Government orders made in annexures, 8, 9 and 10 is unexceptionable."10
17. In the circumstances, this Writ Petition is dismissed. There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
________________________ R. RAGHUNANDAN RAO, J ______________ HARINATH.N, J RJS 11 HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO & HON'BLE SRI JUSTICE N. HARINATH WRIT PETITION.No.9620 of 2023 (per Hon'ble Sri Justice R. Raghunandan Rao) Dt: 04.10.2024 RJS