THE HON'BLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO. 24522 OF 2022
ORDER:
This Writ Petition is filed seeking a Writ of Mandamus declaring the Office Order No.Ec/114(06)/2022-PD, dated 30.5.2022 issued by the respondent No.1 reverting the petitioner to post of Assistant Engineer and also Office Order No. Ea/255(16)/2022-PD-1, dated 30-05-2022 issued by respondent No.2 promoting the respondent No.5 in place of the petitioner as illegal, arbitrary and against the Principles of Natural Justice and consequently to direct the respondent No.3 to continue the petitioner as Depot Manager in the respondent No.4 Corporation and to consider the petitioner's representation dated 24.05.2022 for posting him as a Depot Manager, Kothagudem and to pass such order or orders.
2. Brief facts leading to the filing of the present writ petition are that the petitioner was appointed as a Mechanical Supervisor (trainee) on 30.12.1999 in the respondent's corporation and was promoted from time to time and was ultimately promoted as Assistant Mechanical Engineer on 27.05.2019 as per Regulation 30 of the TSRTC Employees (Recruitment) Regulations, 1966. It is submitted that the said appointment by promotion from the post of Assistant Engineer (Mechanical) is based on the seniority and those who were promoted along with the petitioner were posted to respective posts as Depot Managers and the Petitioner was posted as Depot Manager, Bhadrachalam. 2
PMD,J W.P.No.24522 of 2022
3. It is submitted that on 20.05.2021, in spite of the petitioner's request to respondents to post him to Kothagudem on spouse grounds, the Petitioner was posted to Nagarkurnool on 26.06.2021 and thereafter on regular transfer, the petitioner was posted to Mahaboobabad Depot vide proceedings No.Ee/255(13)/2022-PD, dated 24.03.2022. It is submitted that the Petitioner again requested the authorities for considering posting him to Kothagudem on spouse grounds. The Petitioner was advised to make fresh representation and accordingly, he made a representation on 24.05.2022 requesting the respondents to post him at Kothagudem Depot as the person who was working there is going to retire in the month of August'2022. It is submitted that on 30.05.2022, vide the office order No. Ec/114(06)/2022-PD issued by respondent No.1, the Petitioner was reverted from the post of Depot Manager to Assistant Engineer (Mechanical) and in the place of the Petitioner, another officer i.e., respondent No.5, who was junior to the petitioner was posted. Challenging the same, the present Writ Petition is filed.
4. The Learned Counsel for the Petitioner submitted that though the Petitioner was given adhoc promotion under Regulation 30 of TSRTC Employees (Recruitment) Regulation of 1966, i.e., an appointment to higher post is made as per the said regulation in administrative exigencies, authorities cannot invoke the power under regulation 30 for reversion to again fill up the said post with another adhoc employee. It is submitted that as per the said 3 PMD,J W.P.No.24522 of 2022 regulation, the post can be filled up only by a regular employee. He further submitted that at the time of reversion, no notice was given to the Petitioner and such an action is in clear violation of Principles of Natural Justice, particularly when respondent No.5 is junior to the Petitioner. He placed reliance upon the judgment of this court dated 19.03.2019 in the case of A.Rajendra Prasad Versus State of Telangana1, wherein, it was held that a temporary employee cannot be replaced by another adhoc or temporary employee and also the judgment of the Hon'ble Supreme Court in the case of Manish Gupta Versus President (Jan Bhagidari Samiti)2.
5. He also placed reliance on the judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh Vs. Sughar Singh3, for the proposition that reversion is always a reduction in rank and reversion from a higher temporary or official rank to a lower substantive rank is in the sense of reduction and would be regarded as a punishment and such orders cannot be passed without due notice to the Petitioner and without following the due process of law.
6. The Learned Counsel for the respondents No.1 to 4 have filed their counter-affidavit and in spite of service of notice on respondent No.5, there is no counter filed by her. The Learned Standing Counsel relied upon the averments made on the counter-affidavit and placed particular reliance upon 1 W.P.No.350 of 2019 and batch 2 Civil Appeal Nos.3084-3088 of 2022 arising out of Special Leave Petition(Civil) No.12946-12950 of 2017, dt.21.04.2022.
3 (1974) 1 SCC 2018 4 PMD,J W.P.No.24522 of 2022 regulation 30 of TSRTC Employees Recruitment Regulation, 1966. It is submitted that under Clause-5 of Regulation 30, the Appointing Authority shall have the power to revert to a lower category or post any person promoted under Clauses (1) or (2) of regulation 30 at any time without assigning any reason and without notice. Further, in the counter-affidavit, there are certain allegations made against the Petitioner and it is stated that the Corporation has initiated the disciplinary action against him reverting him to substantial post so that Corporation can take action as per the service rules. The Learned Standing Counsel also placed reliance upon the judgment of this court in Writ Appeal No.4 of 2017, wherein Regulation 30 of TSRTC Employees' (Recruitment) Regulations, 1966 was considered and the reversion order was upheld.
7. Having regard to the rival contentions and the material on record, this Court finds that an order of reversion from the post of Assistant Mechanical Engineer to the post of Assistant Engineer (Mechanical) was passed by the respondent No.1. The Petitioner was appointed as Depot Manager or Assistant Mechanical Engineer under Regulation 30 of TSRTC employees' regulation, 1966. Since, both the parties are relying on the relevant regulation in support of their contentions, the same is reproduced hereunder for ready reference.
Regulation 30: Temporary Promotion 1(i) Where it is necessary in the administrative interest to fill emergently, a vacancy in a post borne on the cadre of higher category in a service or class by promotion from lower category and 5 PMD,J W.P.No.24522 of 2022 if the filling of such vacancy in accordance with these regulations is likely result in undue delay, the appointing authority may promote a person temporarily otherwise than in accordance with these Regulations.
(ii) No person who does not possess the qualifications, if any, prescribed for the said service, class, or category shall ordinarily be promoted under sub-clause (i) every person who has been or is promoted under sub-clause (i) shall be replaced as soon as possible by promoting a person possessing such qualifications.
2. Where it is necessary to fill a short vacancy in a post borne on the cadre of a higher category in a service or a class, by promotion from lower category and the appointment of a person who is eligible for such promotion under these Regulations, would involve excessive expenditure on travelling allowance or exceptional administrative inconvenience, the appointing authority may promote any other person possessing the qualifications, if any, prescribed for the post.
3. A person promoted under sub-clause (i) of clause (1) whether or not he possesses the qualification prescribed for the service, class or category to which he is promoted shall as soon as possible be replaced by a member of the service who is eligible to hold the post under the Regulations or orders in force.
4. A person promoted under Clauses (1) or (2) of Regulation 30 shall not be regarded as 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.
5. The appointment authority shall have the power to revert to a lower category or post any person promoted under clause (1) or (2) of Regulation 30 at any time without assigning any reason and without notice.
6. If any person referred to in clause (4) is subsequently promoted to the higher category in accordance with these regulations, he/she shall commence his/her proba-tion in such category from the date of such subsequent promotion or from such earlier date as the appointing authority may in its discretion determine. He/she shall also be eligible to draw increments in the time scale of pay applicable to him/her from the date of commencement of his/her probation but shall not be entitled to arrears of pay unless otherwise ordered.
8. From the reading of the above regulation, it is clear that in the administrative interest to fill emergently, the vacancy in a post of a higher 6 PMD,J W.P.No.24522 of 2022 cadre, temporary promotion can be given and such promotions can only be given if the said person possesses such qualifications that are prescribed for the said service. But, he shall be replaced as soon as possible by promoting a person possessing such qualification and sub-rule (3) also provides that a person who is promoted shall as soon as possible be replaced by a member of the service who is eligible to hold the post under regulation or orders for the post. From the literal reading to these provisions, it is clear that a person who has been temporarily promoted can be replaced only by another person who possess the necessary qualification and who is eligible for promotion on regular basis. The presumptions that can thus be drawn is that an employee who is promoted temporary cannot be replaced by another employee temporarily unless there are reasons for doing so. Admittedly, the Petitioner is senior to the respondent No. 5 and without giving any reasons; the Petitioner cannot be reverted and replaced by his junior, i.e., respondent No.5. In the counter- affidavit filed by the respondents, the respondents have tried to justify the reversion by making allegations against the petitioner. Further, the said allegations have not been intimated to the Petitioner by way of any charge memo and no action has been initiated thereafter. In view of the same, this court is of the opinion that the reasons given in the counter-affidavit cannot substitute or justify the impugned order. It is a settled law that an impugned order will have to stand on its own legs. As the impugned order does not give reasons as to why the Petitioner has been reverted and his junior who is 7 PMD,J W.P.No.24522 of 2022 respondent No.5 to the petitioner has been promoted also temporarily without any notice to the Petitioner, this Court is of the opinion that the same is not sustainable, particularly in view of the violations of the Principles of Natural Justice.
9. The Hon'ble Supreme Court in the case of State of Uttar Pradesh and others Versus Sughar Singh (cited supra) in paras 13 and 20 has considered the issue at length and Para 20 has held as under:
20. In the instant case we have no doubt in our mind that the peculiar circumstance that from out of a group of about 200 officers most of whom are junior to the respondent, the respondent alone has been reverted to the substantive post of Head Constable makes it absolutely clear that there was no administrative reason for this reversion. In fact there was no suggestion at any time made on behalf of the appellant that the post had been abolished or that the respondent was, for administrative reasons, required to go back to his own post of Head Constable. This circumstance only corroborates what the learned standing counsel for the State admitted before the High Court that the foundation of the order of reversion is the adverse entry made in his character roll. In this view of the matter, we have no doubt that the order was passed by way of punishment, though all outward indicia show the order to be a mere order of reversion. Even if it were not so, we have no doubt that the order would be liable to be quashed on the ground of contravention of Articles 14 and 16 of the constitution.
10. In the present case also, out of five officers who have been promoted under Regulation 30, it is only the Petitioner who has been reverted and therefore it is clear that it is not for administrative exigency, but it is as a punitive action against the Petitioner and any punitive action has to necessarily be preceded by a notice. In view thereof, the Court sets aside the 8 PMD,J W.P.No.24522 of 2022 impugned order dated 30.05.2022 and the respondents are directed to continue the Petitioner as Depot Manager, Mahabubabad. The respondents are however, at liberty to initiate any action against the petitioner, if there are any allegations against him by following due process of law.
11. The Writ-Petition is accordingly allowed. There shall be no order as to costs. Consequently, miscellaneous petitions, if any, pending shall stand closed.
____________________________
JUSTICE P.MADHAVI DEVI
Dated: 21.11.2022
Nsk
9
PMD,J
W.P.No.24522 of 2022
THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI
W.P.No. 24522 OF 2022
Dated: 21.11.2022
nsk