Telangana High Court
K. Kesava Reddy vs Sri K. Raghunandan Rao, on 26 March, 2024
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE SUJOY PAUL
WRIT PETITION Nos.10298 AND 2076 OF 2013
COMMON ORDER:
(per Hon'ble Sri Justice Sujoy Paul)
1. These petitions filed under Article 227 of the Constitution impugn the order passed by the Andhra Pradesh Administrative Tribunal at Hyderabad (hereinafter referred to as 'Tribunal') dated 04.01.2013 whereby O.A.Nos.1277 and 8196 of 2011 were decided by passing a common order.
2. By filing O.A.No.1277 of 2011, the applicants (private respondents herein) stated that they were working as Assistant Commissioners of Endowments Department, which is a Category- 5 (Class-I) post of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Service Rules. They were so promoted as Assistant Commissioners from the post of Executive Officer Grade-I. The post of Superintendent is a Category-I of Class-A post as per Andhra Pradesh Ministerial Service Rules, 1998. Senior Assistant is the feeder post for the post of Superintendent.
3. It was specifically pleaded before the Tribunal that total cadre strength of Superintendent in the Endowments Department 2 HC,J & SP,J Wps_10298 & 2076_2013 sanctioned by the State was 46, out of these, 13 posts were earmarked for the Head Office. The post of Executive Officer Grade-I can be filled up through three modes viz;
i) Direct Recruitment
ii) Promotion
iii) Transfer from the category of Superintendents of Andhra Pradesh Ministerial Service of Endowments Department and Superintendents working in the Institutions other than Regional Joint Commissioner and Deputy Commissioner Cadre institutions.
4. The applicants further averred before the Tribunal that they were promoted as Executive Officers Grade-I from Grade-II and thereafter, promoted as Assistant Commissioners of Endowments.
5. The case of the applicants was that official respondents were promoting Senior Assistants as Superintendents without there being sanctioned posts and they were posted as Executive Officers. 150 posts of Executive Officers Grade-I in different religious institutions were being occupied by the Senior Assistants by coming into the post of Executive Officer from non-existing post of Superintendents. Such employees had right to continue as Executive Officer Grade-I only and they could not have been permitted to work on the posts of Superintendents to get further promotions to the post of Assistant Commissioner of Endowments from the direct feeder category of Superintendents. It was pointed 3 HC,J & SP,J Wps_10298 & 2076_2013 out that as per the statutory rules, a cycle of 3:3:1 was prescribed between Superintendents and Executive Officers Grade-I and persons holding an equivalent post of Assistant Commissioner as per Section 6(a) of the Endowments Act.
6. The applicants before the Tribunal further urged that the Superintendents posted as Executive Officers Grade-I in various temples were drawing salary from the office of concerned temple and not from the treasury of the Government.
7. Considering the aforesaid, the Commissioner of Endowments Department issued instruction through memo dated 07.01.2010 that services of all the Superintendents working in the Moffusil should be regularized against a clear vacancy as per sanctioned cadre strength. Their seniority should be counted from the date of regularization.
8. It was strenuously contended before the Tribunal that this memo dated 07.01.2010 is in conformity with the law laid down by the Apex Court in the catena of judgments. The Government issued another memo dated 27.11.2010 directing that the seniority of a person must be counted from the date of promotion and service rendered by departmental Superintendents on 'foreign service' as Executive Officers Grade-I/Superintendents has to be 4 HC,J & SP,J Wps_10298 & 2076_2013 counted for promotion to the higher category. All the 150 Senior Assistants, who were transferred and posted as Superintendents against the sanctioned cadre strength of 46 were entitled for seniority or any other benefit, whatsoever. The case of the 3rd respondent before the Tribunal was highlighted, who was working as Senior Assistant in the office of Deputy Commissioner of Endowments at Warangal and was promoted as Superintendent without there being any post and posted as Superintendent in Sammakka Saralamma Temple at Eturunagaram.
9. Subsequent to the filing of the said O.A., the Government issued memo dated 27.11.2010 clarifying that the service rendered on deputation on foreign service terms has to be counted in the light of the Chapter XII of F.R. and Rule 9 of the Andhra Pradesh State and Subordinate Service Rules. Admittedly, these two memos dated 27.11.2010 and 28.09.2011 giving similar benefits were challenged before the Tribunal by amending the O.A.
10. The respondent No.1 filed counter before the Tribunal justifying their action. It was stated that as per Rule 13 of Fundamental Rules, the 'lien' of departmental Superintendents posted on foreign service terms as an Executive Officer was retained in the substantive post of Superintendent as per the 5 HC,J & SP,J Wps_10298 & 2076_2013 Rules. The Department also urged that Senior Assistants of Endowments Department were promoted as Superintendents only against clear vacancy.
11. The Tribunal considered the rival contentions and framed the following questions for its determination:-
(i) Whether the Applications are liable to be dismissed for non- joinder of necessary parties?
(ii) Whether the Senior Assistants working in the Endowments Department were promoted as Superintendents in the non-existing vacancies and whether they were posted as Executive Officers in the religious institutions on foreign service?
(iii) Whether the Senior Assistants who were promoted as Superintendents and posted as Executive Officers of the religious institutions are entitled to get their seniority counted for the purpose of promotion to the post of Assistant Commissioner?
(iv) Whether the Senior Assistants who were promoted as Superintendents in the non existing vacancies and posted as Executive Officers of the religious institutions are not entitled to come back as Superintendents in the Endowments Department for the purpose of consideration of their seniority for promotion to the post of Assistant Commissioner of Endowments?
(v) Whether G.O.Rt.No.1165, Revenue(Endowments-I) Department, dated 28.09.2011 and Memo No.2950/Endts.(I)/2010, dated 27.11.2010 are liable to be set aside?
(vi) Whether the applicants are entitled for the reliefs as prayed for?
12. The Tribunal answered the said questions and came to hold as under:-
6 HC,J & SP,J Wps_10298 & 2076_2013
(i) The impugned orders covered by Memo No.2950/Endts.(I)/2010, dated 27.11.2010 and 28.09.2011 issued by the 1st Respondent are set aside by holding that they are contrary to A.P. State and Subordinate Service Rules.
(ii) The promotee Superintendents are entitled to get the benefit of seniority in the period of deputation from the date of their regular appointment as Superintendent in the department.
(iii) Respondents 1 and 2 are directed to examine the promotions of the Superintendents promoted from the post of Senior Assistants and count seniority from the date of them accommodated in the clear regular vacancies.
(iv) The service rendered by the Superintendents can be counted for the purpose of seniority in the category of Superintendents of A.P. Ministerial Service Rules either for the purpose of promotion or for the purpose of seniority from the date of appointment of each individual in the substantive vacancy after following the procedure prescribed under A.P. State and Subordinate Service Rules.
(v) The contention of the applicants that Superintendents of Endowments Department working as Executive Officers Grade-I cannot be permitted to go back to the post of Superintendent in A.P. Ministerial Service of Endowments Department for the purpose of promotion as Assistant Commissioner of Endowments is negatived.
(vi) Respondents 1 and 2 are also directed to consider whether there is any appointment in violation of the Presidential Order, if so, to rectify the same while complying the directions as mentioned above. MA and VMA stand closed.
13. Counsel for the petitioner firstly argued that all the persons going to be affected were not impleaded by the original applicants before the Tribunal and therefore, the O.A. should have been dismissed by the Tribunal for non-joinder of necessary parties.
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14. Secondly, it was argued that the Tribunal has failed to see that the present petitioners were holding 'lien' on their permanent post. In this view of the matter, their promotion as Superintendents was perfectly in order. The argument advanced is that the Tribunal should not have interfered with the memos dated 27.11.2010 and 28.09.2011.
15. The next limb of argument is that the promotions on the post of Superintendents were in accordance with law. There was no need to direct the official respondents to examine whether such promotions were against clear regular vacancies. The directions contained in Clauses 3 and 4 in Tribunal's order were criticized.
16. The counsel for private respondents, on the other hand supported the impugned order of the Tribunal by contending that the Tribunal rightly interfered with because posting of private respondents as Superintendents was in excess to statutory quota and such promotions cannot sustain judicial scrutiny. By placing reliance on the judgment of the Apex Court in V. Sreenivasa Reddy vs. Government of Andhra Pradesh 1, it is submitted that the temporary/ad hoc promotion cannot result into the grant of seniority. For this purpose, reliance is also placed on the judgment of the Apex Court in V. Venkata Prasad vs. High Court 1 1995 Supp (1) SCC 572 8 HC,J & SP,J Wps_10298 & 2076_2013 of Andhra Pradesh 2 and the Division Bench Judgment of this Court in W.P.No.23856 of 2016 (K. Shailendra Moses vs. State of Telangana).
17. The Government counsel reiterated his stand which was taken before the administrative tribunal.
18. The parties confined their arguments to the extent indicated above. We have bestowed our anxious consideration on rival contentions and perused the record.
19. The first point raised by the learned counsel for the petitioners was relating to non-joinder of all the parties who were going to be affected by the decision of the Tribunal. As noticed above, the applicants challenged two memos dated 27.11.2010 and 28.09.2011 before the Tribunal. On the strength of these two memos, the department granted seniority to the present petitioners/private respondents before the Tribunal. This is not in dispute that original applicants impleaded respondent No.3, an effected employee who contested the matter before the Tribunal by engaging a counsel. This point raised is no more res integra.
20. The Hon'ble Apex Court way back in GM, South Central Railway vs. A.V.R.Siddhanti 3, held as under: 2
(2016) 11 SCC 656 9 HC,J & SP,J Wps_10298 & 2076_2013 "The respondents-petitioners are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of Government servant is assailed. In such proceedings the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. In the present case, the relief is claimed only against the Railway which has been impleaded through its representative. No lost or order fixing seniority of the petitioners vis-à-vis particular individuals, pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a result of the re-adjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decision of October 16, 1952, were, at the most, proper parties and not necessary parties, and their non-joinder could not be fatal to the writ petition."
(Emphasis Supplied)
21. The principle laid down in this judgment was consistently followed by the Supreme Court. In Sanjay Prakash vs. Union of India 4, the Supreme Court opined that in a case of this nature, where the policy decision was called in question, it was not necessary to implead those against whom relief is sought for. At the cost of repetition, since applicants before the tribunal impleaded one effected party, who represented the interest of all the persons concerned, it cannot be said that all such persons going to be effected should have been impleaded. Thus, first objection pales into insignificance.
22. The another ground was that the present petitioners were rightly promoted and they were holding 'lien' in their parent 3 (1974) 4 SCC 335 4 (2021) 9 SCC 79 10 HC,J & SP,J Wps_10298 & 2076_2013 department. The Tribunal, in our considered judgment, has considered the definition of 'lien' and rightly opined that lien is a title of Government Servant to hold a post on substantive basis. One cannot have 'lien' on a post which he is not occupant legally and on substantive basis. The Tribunal considering the number of Superintendents occupying the posts qua the number of actual sanctioned posts, issued direction to the department to examine the promotions of Superintendents promoted from the post of Senior Assistants and count seniority from the date each of them accommodated in the clear regular vacancies.
23. In our considered opinion this direction of Tribunal is strictly in consonance with the judgment of Supreme Court in Keshav Chandra Joshi vs. Union of India 5. The dicta of this judgment was recently followed in Malook Singh vs. State of Punjab6 and in Rashi Mani Mishra vs. State of Uttar Pradesh 7. It was poignantly held that the ad hoc/temporary promotions will not fetch any seniority on the said post.
24. The affidavit of present petitioners shows that they worked from different dates with different Ministers as Personal Assistants (PA). Even assuming that all such postings were on deputation, 5 1992 Supp (1) SCC 272 6 2021 SCC Online SC 876 7 (2021) 17 SCC 399 11 HC,J & SP,J Wps_10298 & 2076_2013 the present petitioners can hold 'lien' only on the post substantively held by them. The seniority arising out of such post held on substantive basis alone can be counted. We do not see any flaw in the order of Tribunal, wherein Tribunal directed the department to undertake a meticulous exercise of examining the promotions of Superintendents in order to determine whether they were working against sanctioned and vacant posts.
25. Since the Tribunal has taken a plausible view, we do not find any reason to disturb the same. Resultantly, the Writ Petitions fail and are hereby dismissed. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.
_______________________ ALOK ARADHE, CJ ___________________ SUJOY PAUL, J Date: 26.03.2024 TJMR