Telangana High Court
P.Narsimulu vs The State Of Telangana And 2 Others on 3 June, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
WRIT PETITION No.5147 of 2021
ORDER:
This Writ Petition is filed seeking a writ of mandamus declaring the action of respondent No.2 in promoting respondent No.3 as Field Officer vide impugned memo No.A2/126/2021 dated 04.02.2021 as highly illegal, arbitrary and in gross violation of G.O.Ms.No.28, Employment Generation and Youth Services (CA.II) Department dated 19.03.1990 and consequently to set aside the impugned memo dated 04.02.2021 with a further direction to the respondent Nos.1 and 2 to consider the petitioner's case for promotion as Field Officer as per seniority and ratio with all consequential benefits and to pass such other order or orders.
2. Brief facts leading to filing of the present writ petition are that the petitioner is working as a Superintendent in SBR Government College of Music and Dance, TMD,J wp_5147_2021 2 Secunderabad. The next post for promotion is the post of Field Officer and it was to be filled by appointment by transfer of Superintendents in A.P. Ministerial Service in the Directorate of Culture and Colleges/Schools of Music and Dance. It is submitted that as per G.O.Ms.No.28 dated 19.03.1990, the 1st vacancy and 2nd vacancy has to be filled by the Superintendent of Directorate and the 3rd vacancy has to be filled by the Superintendent in the Government Institutions of Music and Dance. It is submitted that two Field Officer posts have been filled up by the Superintendents of Directorate of Culture and therefore the 3rd vacancy ought to have been filled up by the Superintendent of Government Music and Dance Colleges/Schools. Thus, the post of Field Officer that would fall vacant after the promotion of Ch. Raghunandan, Field Officer as Assistant Director was to be filled up by Superintendent of Government Music and Dance Colleges/Schools and the petitioner being the senior-most TMD,J wp_5147_2021 3 was eligible for the same. However on the ground that there is bifurcation of the State of Andhra Pradesh into the States of Andhra Pradesh and Telangana, the respondents have started the roster afresh and have filled up the vacancy with the Superintendent of Directorate i.e., respondent No.3 herein. Challenging the same, the present writ petition has been filed.
3. The respondents have filed a counter affidavit stating that after bifurcation of the State of Telangana from the earlier State of Andhra Pradesh and in terms of orders issued in G.O.Ms.Nos.45 and 46 dated 01.06.2016 by the Law Department, the promotion of Superintendent as Field Officer is taken afresh from the appointed date and also from 1st June 2016. Therefore, the 1st vacancy was filled up by Superintendent-Ch. Raghunandan on 14.10.2016 as Field Officer and 2nd vacancy is filled up with respondent No.3, R.Nagaraju, Superintendent on 30.01.2021 and the 3rd vacancy will be filled up by the Superintendent from TMD,J wp_5147_2021 4 Government Music colleges as per ratio mentioned in G.O.Ms.No.28, Employment Generation and Youth Services (CA.II) Department dated 19.03.1990. It is stated that the petitioner being the senior-most Superintendent in the Government College of Music and Dance is eligible for promotion as the Field Officer in the upcoming 3rd vacancy as per the Telangana Adaptations Laws Order 2016 of G.O.Ms.Nos.45 and 46 dated 01.06.2016. It is submitted that as per the said order, all the rules and G.Os. in the new State of Telangana shall be applicable and implemented afresh and therefore, the Writ Petition has no merits and is liable to be dismissed.
4. This Court, vide order dated 23.09.2022, had required the learned Government Pleader for Services to furnish the list of officers, who have been promoted to the post of Field Officers working in the Department of Language and Culture from the year 2010 onwards, till the date of the TMD,J wp_5147_2021 5 order along with details of the feeder category of the officers, who have been promoted.
5. The details of the same have been furnished vide letter dated 17.10.2023. According the said information, the ratio of 2:1 as per the Government orders issued in G.O.Ms.No.28 dated 19.03.1990 has been followed and in the year 2006-2009, Superintendents from Directorate of Culture have been promoted as Field Officers in the 1st and 2nd vacancy and the Superintendent from Music College has been promoted in the 3rd vacancy in the year 2013. 4th vacancy has been filled up in the year 2013 from the Directorate of Culture and after formation of the State of Telangana, the first two vacancies have been filled up from the Directorate of Culture.
6. Learned Government Pleader for Services has also filed a copy of the circular memo No.1450-A/Ser.D/A1/2014-4 dated 27.05.2015 wherein the guidelines were issued for making promotions/appointments by transfers involving TMD,J wp_5147_2021 6 promotions, purely on temporary/ad hoc basis to the posts having State Cadre and also to the posts in Secretariat, Heads of Departments, State Level Officers, etc., which fall entirely in the State of Telangana, subject to the conditions stipulated therein. Learned Government Pleader referred to Para 2 (iv) of the said circular wherein it is provided that roster points shall be commenced afresh in the State of Telangana in respect of the posts, which come under the purview of the process of allocation and roster points shall be continued in respect of the posts, which do not come under the purview of the process of allocation. Learned Government Pleader also referred to the instructions dated 20.04.2023 wherein it is mentioned that the post of Field Officer in the Department of Language and Culture is a single post in the Directorate and it is State wide post not zonal post. Therefore, according to him, the roster points had to be implemented afresh.
TMD,J wp_5147_2021 7
7. Learned counsel for the petitioner, on the other hand, relied upon the following judgments in support of his contentions that the roster points ought to have been continued and the petitioner ought to have been considered to the post of Field Officer as per his turn:
i. M.Shyam Sunder and others v. Government of A.P. and others 1.
ii. Nirmal Chandra Bhattacharjee and others v.
Union of India and others2. iii. D.S.Nakara and others v. Union of India 3. iv. Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and others4.
v. Akhilesh Prasad v. Jharkhand Public Service Commission and others 5. 1 2001 (6) ALD 87 (DB) 2 1991 Supp (2) SCC 363 3 (1983) 1 SCC 305 4 (1990) 2 SCC 715 5 2022 SCC ONLINE SC 510 TMD,J wp_5147_2021 8
8. Having regard to the rival contentions and the material on record, this Court finds that the only question to be considered in this Writ Petition is whether the roster points have to be commenced afresh after formation of the State of Telangana or they ought to have been continued. In the judgments relied upon by the learned counsel for the petitioner following principles emerges.
i. In case of M.Shyam Sunder and others v.
Government of A.P. and others (supra 1), the principles laid down by the erstwhile High Court of Andhra Pradesh are that once the person is regularized in service i.e., date of regularization once fixed by the appointing authority cannot be changed subsequently even by the reviewing authority. The said date of regularization cannot be ignored.
ii. In the case Nirmal Chandra Bhattacharjee and others v. Union of India and others (supra 2), TMD,J wp_5147_2021 9 the Hon'ble Supreme Court held that service rules cannot be made or cannot be changed to the prejudice of an employee, who was in service prior to the change as it would be in violation of Article 309 of the Constitution of India.
iii. In the case of D.S.Nakara and others v. Union of India (supra 3), the Hon'ble Supreme Court held that classification of category of employees must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. iv. In the case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and others (supra 4), the Hon'ble Supreme Court held that it is not permissible to hold that the quota TMD,J wp_5147_2021 10 rule should be applied at the stage of appointment and not at the stage of confirmation. It was held that when the appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources and if rules are framed in this regard, they must be ordinarily followed strictly.
v. In the case of Akhilesh Prasad v. Jharkhand Public Service Commission and others (supra 5), the Hon'ble Supreme Court held that when there is bifurcation of States, an obligation is cast on the part of the Parliament to provide clarity about the kind of protection, regarding the status of such individuals forced to choose one among the newly reorganized states and to ensure that they are not worse off as a result of reorganization and that duty to provide clarity and protection, generally speaking has to be consistent i.e., in the case of one states' TMD,J wp_5147_2021 11 reorganization, the protection should not be greater than in the case of reorganization of another state and that would defeat the command of Articles 14 and 15 (1) of the Constitution of India. It was held that duty stems from a co-joint reading of Part I (Articles 1 to 4), Articles 14, 15(1), 341 and 342 of the Constitution and the overarching concern that the individual should not be worse off due to disruption, not of her or his making, and the duty of Parliament in such cases is a constitutional obligation to ensure that no one individual or group is disadvantaged.
9. Learned counsel for the petitioner had submitted that due to bifurcation of the State, the petitioner could not be put in disadvantageous position than he was in the combined State of Andhra Pradesh.
10. Except for quoting the circular memo issued by the Government of Telangana dated 27.05.2015, that roster TMD,J wp_5147_2021 12 point shall be commenced afresh in the State of Telangana in respect of the post which come within the purview of the process of allocation and roster points shall be continued in respect of the posts which do not come under the purview of the process of allocation, respondents have not stated as to how the said circular is applicable to the present department. From the details given in the letter dated 17.10.2023, it appears that there is no allocation in respect of these posts and all the officers continued in the State of Telangana. Therefore, the roster point should have been continued in respect of the posts particularly in view of the judgments relied upon by the learned counsel for the petitioner that the service conditions of an employee cannot be changed without his consent or without his role in the same. In view of the same, the respondents are directed to follow the roster points, which were prevalent prior to bifurcation of the State and promote the petitioner to the post of Field Officer with effect from the date on which TMD,J wp_5147_2021 13 respondent No.3 has been appointed. The respondents are directed to pass consequential orders immediately.
11. Accordingly, the Writ Petition is allowed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
_____________________________ JUSTICE T.MADHAVI DEVI Dated: 03.06.2024 PRN