Telangana High Court
A. Balaji vs The State Of Telangana on 5 June, 2024
THE HON'BLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION (T.R) No.3187 of 2017
ORDER:
This writ petition is filed seeking the following relief:
"......To issue writ order or order as this Hon'ble Court may be pleased to issue a writ of mandamus declaring the impugned action of the respondents in denying the promotion of the 2nd petitioner, even senior, to the post of Assistant Commissioner of Endowments in the panel year 2016-17 under revision even vacancy arisen in the month of February, 2017 and no DPC was conducted for the panel year 2017-18 while conducting D.P.C for the panel year 2018-19 for the above post and denied petitioner promotion on the pretext of ACB case pendency despite no proceedings were pending against the 2nd petitioner in the above panel year and ignoring the panel year 2017-18 while conducting DPC is illegal, unfair, unlawful and contrary to the dicta laid down by Apex Court and violation of Articles 14 and 16 of the Constitution of India and consequently declare that the 2nd petitioner is entitled for promotion to the post of Assistant Commissioner of Endowments neither against retirement vacancy of Feb 2017 under revision of panel year 2016-17 or in the panel year 2017-18 in terms of G.O.Ms.No.5 dt. 05-01-2016 whenever D.P.C conducted with all consequential benefits and further declare the 1st petitioner promotion made as per rules and to pass such other order or orders as this Hon'ble Court may deem fit".2
2. Brief facts leading to the filing of the present writ petition are that the petitioners herein were working as Executive Officers Grade-I in the temples of Sri Peddamma Temple, Jublee Hills, Hyderabad and Sri Karmanghat Hanuman Temple, Karmanghat Village, Saroornagar Mandal, Ranga Reddy District respectively. Both of them are entitled to be promoted to the posts of Assistant Commissioners of Endowments which comes under Category-5 of Class-1 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Service Rules. These rules have been promulgated through G.O.Ms.No. 245, Revenue (Endowments. I) Department, dated 08.05.2002.
3. Rule-3 of the said rules provided for filling up of post of the Assistant Commissioner either i) by direct recruitment; ii) by promotion from the category 3 of Superintendent or Special Category Stenographer in Endowments Department; iii) by promotion of Executive Officer Grade-I or iv) by transfer of a person who has been holding an equivalent post of Assistant Commissioner in any of the Charitable or Hindu Religious Institutions and Endowments published under Clause-A of Section-6 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987.
4. Note-2 provided a cyclic order apart from fixing a ratio, as already submitted above, there are essentially three (3) Feeder categories for the post of Assistant Commissioner of Endowments. Note-3 also provided that if no qualified candidate is available for appointment from a particular category, the vacancy shall be filled by a qualified candidate by rotation in the same cycle.
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5. The learned counsel for the petitioners submitted that the State of united Andhra Pradesh was divided into six zones and the region of Telangana was carved out into Zones-V and VI. After bifurcation of the state in the erstwhile Zones-V and VI constituted under the Presidential Order, the total cadre strength of Executive Officers Grade-I is 39 as is explicit and evident from G.O.Ms.No.336, Finance (SMPC-1) Department, dated 15.11.2010. Under the caption in the Annexure E.O. Grade-I Zone-V was shown as having cadre strength of 13 and Zone-VI having cadre strength of 26, totaling to 39 posts in the cadre.
6. In contrast, it is clear from the reading of G.O.Ms.No.897, Revenue (SPF) Department, dated 03.08.1976, that the Superintendents in Zones-V and VI is 6+ 3 totaling nine (9). Four more posts were added such as (i) Superintendents in the office 5 of Regional Joint Commissioner, Multi Zone-III; (ii) Deputy Commissioner, Warangal; (iii) Assistant Commissioner, Adilabad; and (iv) Assistant Commissioner, Secunderabad, thus totaling to 13 in the cadre. According to the petitioners, total cadre strength of Superintendents in Multi Zone-III comprising of Zones-V and VI is 13 which is almost 1/3rd of the total cadre strength of Executive Officers Grade-I and the cyclic order indicated in the rules which are impugned shows the other way by providing four for the Superintendents and three for the Executive Officers Grade-I. Thus, according to the petitioners, it is highly irrational, unrelated to the facts and un-equals are being treated as equals and un-equals were being given a lion's share.
7. It is further submitted that in the endowments department, each unit is self contained unit and inter transferability is not permissable and 6 therefore, for the purpose of appointment, seniority, promotion etc., each unit is separate and therefore, the Superintendents working in the office of the Commissioner of Endowments cannot be promoted to a zonal post of Assistant Commissioner, be it in Zone-V or Zone-VI and the law is made clear by the Apex Court in the case of V. Jagannadha Rao Vs. State of A.P. 1 Therefore, according to the petitioners, the provision made in Note-2 of Rule-3 assigning the 1st and 8th vacancies to the Superintendent/Special Category Stenographer working in the office of the Commissioner of Endowments is violative of the Presidential Order and the law declared by the Apex Court.
8. Even the A.P. Reorganisation Act, 2014 through Section-97, provided that for the application of Article 371-D of the Constitution to the State of 1 (2001 (10) SCC 401) 7 Telangana also after bifurcation of the erstwhile State of Andhra Pradesh, the cycle providing four vacancies to the Superintendents inclusive of the Superintendent/Special Category Stenographer working in the office of the 3rd respondent is liable to be struck down as being irrational and violative of Articles 14 and 16 of the Constitution of India, apart from the fact that providing for 1st and 8th vacancies to the Superintendent/Special Category Stenographer from the office of the 3rd respondent is contrary to the Presidential Order and the law declared by the Apex Court.
9. It is further submitted that almost all the Superintendents of the Mufsill are those who were sent on foreign service as Superintendents from the posts of Senior Assistants and none of them have had their services regularized in the cadre of Superintendents and therefore, applying Rule-8 of 8 the A.P. State and Subordinate Service Rules is not possible and none of the Superintendents now working are entitled to be considered for promotion to the posts of Assistant Commissioner of Endowments.
10. The learned counsel for the petitioners further referred to the Judgment of the Division Bench of the Tribunal wherein the O.A.No.1277/2011, vide orders dated 04.01.2013, it was declared that unless and until the Superintendents (Mufsills) services are regularized, they cannot be considered for promotion and their services can only be counted in the post of Superintendent only from the date on which their services are regularized against a vacancy available to those persons. The Contempt Case, vide C.A.No.614 of 2013, was also filed for not implementing the order of the Division Bench of the 9 Tribunal. The petitioners are therefore seeking a direction to implement the directions of the Tribunal.
11. There is also a reference made to the order of the Division Bench of this Court dated 24.04.2014 in W.V.M.P.No.329 and 330 of 2014 in W.P.M.P.No.2697 of 2013 in W.P.No.2222 of 2013, wherein, it was directed that such of those in the feeder category who are approved probationers under Rule-8 of the A.P. State and Subordinate Service Rules alone are to be considered for the purpose of promotion to the posts of Assistant Commissioners of Endowments by the DPC.
12. It is submitted that the 2nd respondent has constituted a DPC through G.O.Rt.No.223, Revenue (Endowments.I) Department, dated 22.12.2014 for consideration for promotion to the first level Gazetted Post namely the post of Assistant Commissioner of Endowments and that neither the 2nd respondent nor 10 the DPC convened by it can go by the cycle provided under Note-2 of Rule- 3 of the A.P. Charitable & Hindu Religious Endowments Act, 1987, as the same is ultra vires of Para-5 of the Presidential Order and the law declared by the Hon'ble Supreme Court in the Jagannadha Rao's case in including Superintendents/Special Category Stenographer working in the office of the 3rd respondent in the list of the employees eligible for consideration.
13. It is submitted that the rules will have to be amended accordingly by excluding the above Superintendents/Special Category Stenographer working in the office of the 3rd respondent from the cycle and also rationalizing the cycle by making it 3:1 between the Executive Officers Grade-I and Superintendents in the offices of the Mufsill as Rule- 3, Note-2 is ultra vires of Articles 14 and 16 of the 11 Constitution of India, Article 371-D and the Presidential Order.
14. However, this Court finds that after amendment of prayer, the prayer of the petitioners is only to challenge the action of the respondents in denying the promotion to the 2nd petitioner (even though he was entitiled for promotion) only on the ground that the Anti Corruption Bureau (ACB) case was pending against him.
15. The learned counsel for the respondents have filed their counter affidavit and submitted that the petitioners herein belong to the feeder category of Executive Officer Grade-I and that in the year 2016, the D.P.C. met on 17-09-2016 for selecting the candidates to fill the posts of Assistant Commissioner for the panel year, 2016-17. The cadre strength of Assistant Commissioner is (27) and out of (27) posts, (19) vacancies were there, out of which 12 (12) vacancies are earmarked for promotion/appointment by transfer and remaining (7) vacancies were meant for Direct Recruitment. On proportioning the said (12) vacancies amongst (3) feeder categories as per cycle prescribed vide G.O.Ms.No.5, dated 05-01-2016, (8) vacancies were earmarked for Executive Officers Grade-I while (2) were earmarked for Superintendent (Mufsill) and (2) for Assistant Executive Officers.
16. It is submitted that the candidates including the petitioner No.1 herein have been considered and recommended for promotion to the post of Assistant Commissioner. However, the petitioner No.2 herein could not be considered, since (2) candidate's junior to him namely, Smt. Ramala Sunitha and Smt. Anneparthi Sulochana, were considered, under Rule of Reservation for promotion to the post of Assistant Commissioner. It is submitted that though the 13 petitioner was under the zone of consideration, he could not be considered for promotion to the post of Assistant Commissioner for want of vacancy.
17. It is submitted that the petitioner No.2, while working as Executive Officer of Sri Peddamma Temple, Jubilee Hills, Hyderabad, was trapped by the officials of Anti-Corruption Bureau on 07-05-2019 A.N., when he demanded and accepted a bribe amount of Rs.1,00,000/- from the complainant, Sri Pragya Anjaneyulu Sharma, S/o. Late P.Narasimha Rama Sharma, R/o. Secunderabad. A case was registered against him by the Anti-Corruption Bureau in Crime No.14/RCT-CR-1/2019 of A.C.B., City Range-I, Hyderabad Under Section 7(a) of the Prevention of Corruption Act, 1988 and he was arrested on 07.05.2019 and was remanded to judicial custody vide proceedings dated 10.05.2019 and subsequently, the prosecution sanction order 14 was recorded by the Government and Director General of Anti-Corruption Bureau filed charge sheet in the said crime number vide C.C.No.65 of 2021 and the matter is pending before the Anti-Corruption Bureau.
18. It is submitted that the Government, after reviewing the suspension order, issued the orders to reinstate him into service without prejudice to the disciplinary/criminal proceedings pending against him. The orders of reinstatement were passed vide proceedings dated 27.07.2022.
19. It is submitted that, when certain vacancies in the cadre of Assistant Commissioner of Endowments have arisen, the DPC meeting was again convened on 29.06.2019, to fill up the vacancies, but since there was criminal proceedings against him, therefore, he could not be considered for promotion.
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20. Learned counsel for the respondents, therefore, prayed for the dismissal of the writ petition.
21. The learned counsel for the petitioners filed reply statement of the petitioner No.2 stating that the petitioner No.2 ought to have been considered for promotion in the panel year 2016-17 itself when there were two clear vacancies in the panel year 2017-18, due to retirement of Sri P. Ashok and Sri A.V. Ramanamurty, and yet, he was not promoted. He submitted that though the ACB case was registered against the petitioner No.2 in the year 2019, the non-consideration of his case for the panel year 2017-18 itself is bad in law.
22. It is submitted that, in the case of similarly placed person like one Smt. K. Seshu Bharati, the respondents have overlooked the punishment and granted her promotion to the post of Assistant 16 Commissioner of Endowment and not considering the case of the petitioner No.2 for the panel year 2017-18 inspite of there being no criminal case against him is bad in law.
23. Having regard to the rival contentions and the material on record, this Court finds that the DPC was convened for consideration of eligible candidates for the post of Assistant Commissioner of Endowments for the panel year 2016-17 and the name of the petitioner No.2 was also considered, but he could not be promoted for want of vacancy, as two of his juniors who belonged to ST Community have been promoted. The Hon'ble Supreme Court in the case of Union of India Vs. K.V. Jankiraman 2 held that where the disciplinary or criminal proceedings are pending against an employee, his case can be considered for promotion by the DPC by following the 2 (1991) 4 SCC 109 17 procedure of sealed cover for future reference subsequently. In the case of N. Shankar Prasad Vs. State of Andhra Pradesh also, it was held that the pendency of criminal case or the departmental proceedings is not a ground to deny promotion to the writ petitioner in terms of G.O.Ms.No.257, General Administration (SER.C) Department, dated 10.06.1999. Therefore, the respondents ought to have considered the case of the petitioner No.2 for promotion and the proceedings of the DPC with regard to the petitioner No.2 ought to be put in a sealed cover for future reference. Further, whenever the vacancies have arisen in the panel year 2017-18, the case of the eligible candidates including the petitioner No.2 herein ought to have been considered by the respondents.
24. Admittedly, the ACB case against the petitioner No.2 was in the panel year 2019-20 and 18 hence, the case of the petitioner No.2 should have been considered for promotion during the panel years 2017-18 and 2018-19. Therefore, the respondents are directed to reconsider the request of the petitioner No.2 and if the vacancy had arisen before the said dates, then the respondents are directed to reconstitute the DPC for consideration of promotion to the petitioner No.2 for the panel years 2017-18 and 2018-19.
25. Accordingly, this Writ Petition is disposed of with the above directions. There shall be no order as to costs.
Miscellaneous applications, if any pending, shall also stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 05.06.2024 TU