HON'BLE SRI JUSTICE J. SREENIVAS RAO
WRIT PETITION No.5962 of 2017
ORDER:
This writ petition is filed seeking writ of Mandamus or any other appropriate writ, order or direction by directing the respondents to consider the case of the petitioner for promotion/appointment by transfer to the post of Deputy Executive Engineer taking into account the seniority of the petitioner in the cadre of Assistant Engineer w.e.f. 25.11.2003 in the quota meant for Assistant Engineers and promote him as such with all consequential benefits by declaring the proceedings of the 2nd respondent bearing Lr.No.RC/ENC/A2/16051793/16, dated 28.06.2016, communicated by the 3rd respondent vide Memo No.CE/GLIs/Wg1/S1/A1/SRSP-II/PRMNS/ 1658/2016-02/1762, dt.22.07.2016 as illegal, arbitrary and unconstitutional being violative of Articles 14 and 16 of Constitution of India and set aside the same.
2. Heard Sri S. Gopal Rao, learned counsel for the petitioner and learned Assistant Government Pleader for Services - II appearing for respondents. 2
3. Learned counsel for the petitioner submits that the petitioner was appointed as tracer in July, 1996 and he was promoted as Draftsman Grade - III on 19.08.1998 and subsequently he was appointed to the post of Assistant Engineer by transfer vide Proceedings No.RC/ENC/D4/27501/2003-95, dated 05.11.2003, issued by respondent No.2 and his services were regularized in the said category w.e.f. 24.11.2004. Petitioner acquired B.E. (Mechanical) Engineering Degree qualification while working in the Department through distance mode. Subsequently, he was appointed as Assistant Executive Engineer by transfer vide office Proceedings No.Rc/ENC/D2/1133/2012, dated 13.07.2012 and he joined duty as A.E.E on 04.08.2012. 3.1 Learned counsel further submits that the appointment by transfer as A.E.E. is purely temporary basis and there is no change in duties and responsibilities of Assistant Engineer and Assistant Executive Engineer, only change in designation and there is no monetary benefit like pay fixation, notional increments, etc., and the petitioner was given Special Grade Post Scale under Automatic Advancement Scheme, on completion of six 3 years service in the cadre of Assistant Executive Engineer. He also submits that respondent No.2 issued final seniority list of Assistant Engineers wherein the name of the petitioner has been shown at Serial No.175 and the petitioner submitted representation to the respondent No.2 requesting them to rectify and consider his claim for the post of Deputy Executive Engineer, taking into consideration his seniority in the category of Assistant Engineer by duly taking into consideration the similarly situated employee namely Sri K. Eshwar Raju, Assistant Engineer who was appointed by transfer as Assistant Executive Engineer has been promoted as Deputy Executive Engineer, taking into account his seniority in the cadre of Assistant Engineer within their quota. Respondent No.2 without properly considering the representation of the petitioner, passed impugned order dated 28.06.2016 rejecting the claim of the petitioner and the same is clear discrimination and violation of Article 14 of Constitution of India. In support his contentions he relied upon following Judgments:
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1.State of W.B. v. Gitashree Dutta (Dey) 1
2. Rambhotla Ramanna v. Government of Andhra Pradesh 2
4. Per contra, learned Assistant Government Pleader submits that the petitioner was appointed by transfer as Assistant Executive Engineer vide proceedings dated 13.07.2012. In the said order, it is clearly mentioned that the petitioner is not entitled to opt for reversion to the category from which he was appointed as Executive Engineer for claiming benefits of promotion in the lower category. Once the petitioner accepted the terms and conditions enumerated in the said order, the petitioner is not entitled to claim the relief sought in the writ petition.
He further submits that as per the executive instructions under FR 14 (a), where person in a lien against the post is appointed substantially to another post, he acquires a lien against the later and his lien against the former post automatically comes to an end. Hence, the petitioner cannot claim the seniority in the lower cadre at present.
5. He also contended that the seniority of Assistant Engineer was finalized vide Circular Memo 1 2022 SCC OnLine SC 691 2 1970 SCC OnLine AP 205 5 No.RC/ENC/A1/37119/2015 dated 16.01.2016, the petitioner submitted a representation on 27.04.2016 requesting for reversion to the post of Assistant Engineer, respondents after considering the same issued impunged proceeding dated 28.06.2016 rejecting the request of the petitioner by giving cogent reasons and the same is in accordance with law.
6. Having considered the rival submissions made by respective parties and upon perusal of the material available on record, it reveals that the petitioner was initially appointed as tracer in July 1996 and he was promoted to the post of Draftsman Grade II on 19.08.1998. Thereafter, he was appointed to the post of Assistant Engineer by transfer through proceedings issued by respondent No.2 dated 05.11.2003 and his services were regularized in the said category w.e.f 24.11.2004, and he acquired BE(Mechanical) Engineering Degree qualification while working in the department through distance mode. On 13.07.2012, he was appointed as Assistant Executive Engineer by transfer subject to conditions which are as follows:
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i) His appointment by transfer as Assistant Executive Engineer is against the existing vacancy available purely on temporary basis
ii) He is liable to be reverted to the lower post of Assistant Engineer without assigning any reason and without any notice thereon.
iii) He should give an undertaking stating that he will not claim the benefits of the lower post, consequent on his appointment by transfer as AEE and he will not opt for reversion to the lower post from which he was appointed to claiming the benefits of such lower post
iv) He should join duty within 15 days from the date of receipt of reposting orders from the Unit/Circle offices to which he was posted, failing which or evades to join duty by proceeding on leave, shall lose his promotion offer for the current panel year and the name of the candidate shall be placed before the next Departmental Promotion Committee, subject to availability of vacancy. His appointment by transfer as Assistant Executive Engineer is stands cancelled without any further notice thereon as per GOMs No. 145, GA (Ser D) Department, dated 15-6-2004.
v) He is also informed that on appointment by transfer from the category of Assistant Engineer to Assistant Executive Engineer, there is no change in duties and responsibilities of A.Es./A.E.Es., and therefore he is eligible to get his pay fixed as per F.R. 22 (a) (ii) only. As per F.R.22(a)(i) a Government Servant holding a substantive post is appointed to a new post which does not involve assumption of duties and responsibilities of greater importance than those attached to the old post, his pay in the new post will be fixed at the stage of time-scale which is equal to his substantive pay in the old post. The date of next increment shall be the one on which he would have got an increment had he continued in the old post.
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7. The petitioner had accepted the above said terms and conditions of the order and he joined duty on 04.08.2012 without any protest. After rendering more than five years of service he made a representation to respondents requesting them to revert him to the post of Assistant Engineer for the purpose of promotion and also consider for promotion to the post of Deputy Executive Engineer by duly taking into account his seniority in the cadre of Assistant Engineer w.e.f 25.11.2003, in the quota meant for Assistant Engineers with all consequential benefits. Respondent no.3 rightly passed the impugned impugned order dated 28.06.2016, rejecting the claim of the petitioner, stating that the petitioner accepted the conditions mentioned in the order dated 13-07-2012 and he is not entitled to claim reversion to post of Assistant Engineer for the promotion.
8. In State of W.B (1 supra) the Hon'ble Apex Court held that the government's duty to act fairly and in the public interest, and it reaffirmed that estoppel cannot be invoked against statutory provisions.
9. In Rambhotla Ramanna (2 supra) the Honb'le Court held that estoppel cannot be applied against the 8 law. In other words, if a government or any party acts beyond its legal authority, it cannot use estoppel to prevent the correction of that unlawful action. In this specific case, the Minister for Forests acted improperly by issuing an order that was beyond his jurisdiction, and the government had the right to rectify this mistake, despite any prior inconsistent positions it had taken.
Hence, the principle laid down in the judgments relied upon by the petitioner is not applicable to the present facts and circumstances of the case.
10. In case on hand, the petitioner accepted the terms and conditions mentioned in the order dated 13-07-2012 by continuing in the post of Assistant Executive Engineer from 04.08.2012 and availed the benefits and after rendering more than five years of service in the cadre of Assistant Executive Engineer, petitioner does not have any lien in the category of Assistant Engineer as per FR 14(a) and he acquired lien in the category of Assistant Executive Engineer. It is already stated 'supra' that the petitioner accepted all the conditions stipulated in the appointment order dated 13.07.2012. As per the terms and conditions mentioned in the said order the petitioner is not entitled to 9 claim reversion to the lower post of Assistant Engineer and the respondent No.3 has rightly passed the impugned order dated 28.06.2016.
11. For the foregoing reasons, this Court does not find any illegality or irregularity in the said order to invoke the jurisdiction of this Court under Article 226 of Constitution of India and there is no merit in the writ petition and same is liable to be dismissed.
12. Accordingly, the writ petition is dismissed. No costs.
As a sequel, miscellaneous petitions, pending if any, shall stand closed.
_____________________________ JUSTICE J. SREENIVAS RAO 06th October, 2023 PSW