THE HONOURABLE SRI JUSTICE J.SREENIVAS RAO
WRIT PETITION No.9952 of 2017
O R D E R:
This Writ Petition is filed seeking the following relief:
"......to issue a Writ, or Order more in the nature of Writ of Mandamus (a) by declaring the entire action of the respondents, particularly the entire action of the 2nd respondent in rejecting the genuine claim of the petitioner for promotion to the post of the Senior Assistant notionally on par with his juniors vide Impugned Memo Rc.No.A2 11663/2017 dated 28.11.2022 by mentioning certain untenable reasons is as highly illegal, arbitrary, unjust, contrary to Division Bench Judgment in W.P.No.35890 of 2013 dated 11.03.2014 r/w Orders issued in G.O.Ms.No.225 dated: 18.05.1999 and set aside or quash the same
b) and consequently to direct the respondents to forthwith consider the case of the petitioner for promotion to the post of Senior Assistant notionally on par with his juniors by treating that the petitioner is entitled for such promotion with all consequential benefits such as seniority, pay fixation and other allied benefits without reference to the present impugned Memo Rc.No.A2.11663/2017 dated: 28.11.2022 of the 2nd respondent without insisting for passing of Departmental tests in view of Orders issued by Division Bench Judgment in W.P.No.35890 of 2013 dated: 11.03.2014 r/w orders issued in G.O.Ms.No.225 dated: 18.05.1999 and also entitled for relaxation from successful completion of Revenue Survey Training for Six Weeks in view of not deputing the petitioner for such training by the authorities on their own and to pass such other order...."
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02. Heard Sri Arvind Kumar Katta, learned counsel for the petitioner and learned Assistant Government Pleader for Services-II and perused the record.
03. Learned counsel for the petitioner submitted that the petitioner while working as Junior Assistant in the 3rd respondent office, he was placed under suspension vide proceedings No.A2/3902/01 dated 15.01.2002 issued by respondent No.2 due to involvement in two criminal cases vide Crime No.79 of 2001 and Crime No.89 of 2001 registered for the offences under Sections 147, 448, 324 and 326 read with Section 149 of Indian Penal Code on the file of Station House Officer, Wyra Police Station. Subsequently, the petitioner was reinstated into service on 24.08.2002, he retired from services on attaining the age of superannuation on 31.08.2005.
3.1. He further submitted that the criminal case filed against the petitioner was ended into acquittal and learned Judicial Magistrate of First Class, Madhira passed Judgment in C.C.No.205 of 2003 dated 23.08.2007. Later, the petitioner made a representation to the respondents 3 requesting them to regularize his suspension period i.e., from 18.01.2002 to 26.08.2002 (221 days) in view of acquittal in the criminal case. Respondent No.2 without properly considering the representation issued proceedings No.A2/3902/2001 dated 19.03.2008 regularizing the suspension period by sanctioning eligible leave.
3.2. Questioning the above said Order, petitioner filed O.A.No.10323 of 2008 before Andhra Pradesh Administrative Tribunal at Hyderabad, (for short 'APAT') to treat the suspension period as on-duty and grant all consequential benefits including monetary relief and promotion. The said OA was disposed of on 29.01.2011 directing the respondents to treat the suspension period as on-duty and granting full pay and allowances along with benefits like increments, pay revision etc., for the suspension period. Pursuant to the Orders of the APAT, respondent No.2 issued proceedings Dis.No.A2/3902/2001 dated 06.05.2011 regularizing the suspension period of the petitioner as on duty.
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3.3. Learned counsel for the petitioner contended that during his service, the petitioner was not given promotion to the post of Senior Assistant, though he is entitled for notional promotion on par with his juniors, and that the respondents have not granted promotion on the alleged ground of pendency of criminal cases, though the pendency of criminal case is not a bar for promotion as per the Rule 5 of the Telangana State and Subordinate Service Rules, 1996 (for short 'the Rules, 1996').
3.4. As seen from the record, this Court on 12.10.2022 passed an interim direction directing the respondents to consider the representation dated 17.04.2012 submitted by the petitioner duly taking into consideration of proceedings in Rc.No.C/2118/2012 dated 19.07.2012 addressed by Tahsildar to the District Collector, Khammam District and to pass appropriate orders in accordance with law within four weeks.
3.5. Learned counsel for the petitioner contended that respondent No.2 without properly considering the representation, rejected the claim of the petitioner for 5 promotion to the post of Senior Assistant notionally vide Memo in Rc.No.A2/1663/2017 dated 28.11.2022 on the ground that the petitioner had not undergone Survey training which is mandatory for promoting employee to the category of Senior Assistant.
3.6. He vehemently contended that the respondents have not sent the petitioner for Survey training, basing on their mistake the respondents are not entitled to deny the legitimate right of the petitioner for promotion to the post of Senior Assistant notionally and impugned Memo in Rc.No.A2/1663/2017 dated 28.11.2022 passed by respondent No.2 is contrary to law. In support of his contentions, he relied upon the Judgments: Shailesh Kumar and others v. The State of Bihar and others 1 and N.Vadivel and others v. Principal Secretary/Commissioner of Revenue Administration and others 2 contending that not sending the employee for training which is the mistake on the part of the employer, basing on the mistake of employer, the employer is not 1 Letters Patent Appeal No.1638 of 2015 in Civil Writ Jurisdiction Case No.5455 of 2015 2 2019 SCC OnLine Mad 10208 6 entitled to deny the service benefits in favour of the employee.
04. Per contra, the learned Assistant Government Pleader contended that pursuant to the Orders dated 29.01.2011 passed by APAT in O.A.No.10323 of 2008, the respondents treated suspension period of the petitioner as on-duty and extended all the benefits as per his entitlement vide proceedings Dis.No.A2/3902/2001 dated 06.05.2011. He further submitted that petitioner while discharging his duties as Junior Assistant, retired from the service on attaining age of superannuation on 31.08.2005 and respondents have paid all the terminal benefits as per his entitlement.
4.1. He further contended that petitioner filed the present Writ Petition after his retirement by receiving all the benefits. It is further submitted that pursuant to the interim order of this Court dated 12.10.2022, the respondent No.2 considered the representation of the petitioner dated 17.04.2012 and passed impugned proceedings dated 28.11.2022 by giving cogent reasons 7 holding that the petitioner is not entitled for promotion to the post of Senior Assistant notionally and he is not eligible for the same and Survey training is mandatory for promotion to the post of Senior Assistant as per the Telangana State Ministerial Service Rules, 1998 (for brevity 'the Rules, 1998') and there is no illegality or irregularity in the impugned order passed by the respondent No.1.
05. Having considered the rival submissions made by respective parties and after perusal of material available on record, it reveals that the petitioner while discharging his service as Junior Assistant in respondent No.2 office, was placed under suspension on 18.01.2002 due to involvement in two criminal cases vide Crime No.79 of 2001 and Crime No.89 of 2001, on the file of Wyra, Police Station. Subsequently, petitioner was reinstated into service on 24.08.2002 and retired from service on attaining age of superannuation on 31.08.2005. It further reveals that the learned Judicial Magistrate of First Class, Madhira passed Judgment in C.C.No.205 of 2003 dated 23.08.2007, wherein the petitioner was acquitted. Thereafter, petitioner submitted a representation to the respondents seeking 8 regularization of suspension period in view of acquittal in the criminal case. Pursuant to the same, respondent No.2 issued proceedings No.A2/3902/2001 dated 19.03.2008 regularizing the suspension period by sanctioning eligible leave. Aggrieved by the same, the petitioner filed O.A.No.10323 of 2008 before the APAT and the same was disposed on 29.01.2011 directing the respondents to treat the suspension period as 'on-duty' and to pay full pay and allowances and he is entitled to all benefits like increments, pay revision etc., for the period of suspension. Pursuant to the above said Order, respondents extended all the benefits to the petitioner as per his entitlement and issued proceedings dated 06.05.2011.
06. Thereafter, the petitioner filed the present Writ Petition and this Court granted interim direction on 12.10.2022 directing the respondents to consider the representation dated 17.04.2012 submitted by the petitioner duly taking into consideration of proceedings in Rc.No.C/2118/2012 dated 19.07.2012 addressed by respondent No.3 to respondent No.2 and to pass appropriate orders in accordance with law within four 9 weeks. Respondent No.2 passed impugned order, rejecting the claim of the petitioner for promotion to the post of Senior Assistant notionally vide Memo in Rc.No.A2/1663/2017 dated 28.11.2022, wherein he stated that petitioner had not undergone Survey training which is mandatory for promoting employee to the category of Senior Assistant.
07. The specific contention of the learned counsel for the petitioner is that the petitioner was not sent to the training, due to pendency of criminal case and that it is not the mistake on the part of the petitioner and basing on the said mistake committed by the respondents, the petitioner cannot be denied of his promotion to the post of Senior Assistant.
08. It is very much relevant to mention here that the petitioner has not raised any dispute, during his service, when the respondents sent his juniors for survey training and issued promotion orders to them promoting to the post of Senior Assistant. Admittedly, the petitioner retired from service on 31.08.2005 on attaining the age of 10 superannuation and he filed the present Writ Petition raised a dispute claiming promotion to the post of Senior Assistant notionally, after his retirement, contending that pendency of criminal case, is not a bar for granting promotion and the same is not permissible under law and he is not entitled to raise such a plea, after a lapse of 12 years.
09. The principles laid down in Shailesh Kumar (supra1) and N.Vadivel's (supra2), cases are not applicable to the facts and circumstances of this case, on the ground that the petitioner earlier filed O.A.No.10323 of 2008 before APAT questioning proceedings No.A2/3902/2001 dated 19.03.2008 issued by the respondent No.2 herein and sought a direction to the respondents to treat the suspension period as on-duty and grant all consequential benefits including monetary relief and promotion. While disposing of the above said case, APAT issued directions directing the respondents to treat the suspension period as "on-duty" and to pay full pay and allowances and the petitioner is entitled to all benefits like increments, pay revision etc., for the period of suspension. Pursuant to the 11 said Orders, the suspension period of the petitioner was regularized as 'on-duty' and respondents have paid all the benefits as per his entitlement vide proceedings Dis.No.A2/3902/2001 dated 06.05.2011 and the above said Order passed by APAT has become final.
10. It is pertinent to mention here that APAT has not issued other relief sought for by the petitioner that he is entitled for promotion to the post of Senior Assistant, and the said Order has become final, and the petitioner is not entitled to seek relief for promotion to the post of Senior Assistant notionally in the present Writ Petition, especially, he is not having required eligible criteria.
11. Viewed from any angle, there is no illegality, irregularity or error in the impugned Order passed by the respondent No.2 dated 28.11.2022, to invoke the jurisdiction of this Court under Article 226 of the Constitution of India and there are no merits in the Writ Petition and the same is liable to be dismissed.
12. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs.
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As a sequel, the miscellaneous petitions pending, if any, shall stand closed.
______________________ J. SREENIVAS RAO, J Date: 22-SEP-2023 KHRM 13 2 THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO WRIT PETITION No.9952 of 2017 Date: 22-SEP-2023 KHRM