Andhra Pradesh High Court - Amravati

Smt. K. Suguna vs Thechief Executive Officer, on 16 April, 2021

           HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI

                     Writ Petition No.17966 of 2020

ORDER:

This writ petition is filed being aggrieved by the impugned

proceedings dated 22.10.2019 of the 1st respondent, wherein petitioner

was asked to give willingness to take lower post i.e., office subordinate

on the ground that she has not acquired Telugu and English higher grade

typewriting qualification, as illegal and arbitrary.

2. Case of the petitioner is that, she is a graduate in Maths and

also acquired P.G. Degree in Master of Computer Applications (MCA)

from JNTU, Kakinada in the year 2011 and secured I Class with

distinction; she was appointed as Typist in the existing vacancy on

03.08.2016 and posted in the office of the Mandal Praja Parishad,

Anaparthy, on compassionate ground, in the place of her deceased

husband, who passed away on 14.01.2016. In the said appointment

order, a condition is incorporated, which states that the petitioner

should acquire typewriting higher grade qualification both in English and

Telugu within two years of minimum and five years of maximum grace

period from the date of her joining; all the offices in the State, including

the 1st respondent-organization are not using typewriting machines and

entire work is being done with computers; the government itself has

taken a decision and relaxed acquiring the qualification of Typewriting

as well as shorthand vide G.O.Ms.No.116 GAD (Ser.B) Department dated

29.02.2008 to the persons appointed between 05.03.1987 to 04.08.1998,

by invoking Rule 31 of State and Subordinate Service Rules; in similar set

of circumstances, one Sri CH. Hanumantha Rao, who was appointed on

compassionate grounds on 08.06.1998 was terminated as he did not

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acquire the said qualification within the prescribed period, he filed OA

No.3301 of 2004 challenging his termination and the said OA was allowed

with all consequential benefits and the Government also issued orders

vide G.O.Rt.No.4428, Fin. (Admn.III) Department dated 21.12.2011,

reinstating his services with all consequential benefits; in a similar set of

facts wherein the services of the individuals were not regularized on the

ground of non-acquiring of technical qualifications, they filed OA

No.2201 of 2014 and batch and the same were allowed and the

government implemented the said order; when a similar notice was

given to one candidate, she filed OA No.1856 of 2017 and the said OA

was allowed setting aside the notice; challenging the said order in O.A.,

the State filed WP No.11321 of 2019 before this Court and the said writ

petition was dismissed on 14.08.2019 confirming the order passed by the

Tribunal; the Hon'ble Supreme Court in 'H.L.Trehan vs. Union of India1',

held that 'once the case of one employee is decided by the competent

court, the other identically placed employees should be given the same

benefit without any further litigation'; the same view was expressed by

the apex Court in 'K.C. Sharma vs. Union of India2'; even as per

G.O.Ms.No.969 (Ser.A) Department dated 27.10.1995, five years grace

period is given to the persons appointed on compassionate grounds;

petitioner is also entitled for similar relaxation which was granted in

favour of certain other employees vide G.O.Ms.No.116 GA (Ser.B)

Department dated 29.02.2008. Hence the writ petition.

3. When the matter came up for admission, an interim direction

was passed on 08.10.2020, directing the respondents not to revert the

petitioner and continue her as Typist.

1989(2) USJ SC 145

AIR 1997 SC 3588

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4. Counter-affidavit along with vacate stay petition has been filed

by the respondents stating inter-alia, that petitioner was appointed as

Typist on conditional basis under compassionate grounds and that she

should acquire typewriting higher grade both in English and Telugu

within the stipulated period of five years; as the petitioner could not

acquire the required qualification, a notice was issued in terms of

G.O.Ms.No.969 dated 27.10.1995 asking willingness for demotion to the

lower post; if the individual accepts such condition, she will be

continued in lower post as a new comer from the date of joining in the

lower post and if she denies it, she will be discharged from service;

according to the rules, for appointment to a Typist post, the candidate

shall possess higher grade type writing both in English and Telugu and

relaxation was given only to the persons appointed between 05.03.1987

and 04.08.1998, whereas petitioner was appointed on 03.08.2016;

petitioner is not entitled for relaxation of the condition and sought to

vacate the interim stay granted by this Court.

5. Heard Sri S.Satyanarayana Rao, learned counsel for the

petitioner and Sri G. Srinivasula Reddy, learned standing counsel

appearing for the respondents.

6. The impugned show cause notice issued to the petitioner on

22.10.2019, reads as follows:

"Smt. Suguna, was appointed as Typist on compassionate grounds w.e.f.18.08.2016 vide reference 1st cited above and working at Zilla Parishad, Kakinada. As on today, she is not acquired Technical qualifications of Telugu and English Higher to hold the post of Typist in terms of orders issued vide ref. 2nd cited above. Therefore, why she should not be reappointed as office subordinate and directed to submit explanation if any within a period of three days due to non-acquiring of technical qualifications stipulated period."

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7. According to G.O.Ms.No.969 dated 27.10.1995, if a candidate

fail to acquire the requisite qualification prescribed for the post within

the stipulated time under the scheme of compassionate appointment,

such candidates may be appointed in a lower post such as an Attender as

if he/she is a fresh candidate, after obtaining the willingness of the

candidate and if the candidate expresses unwillingness, such candidate

shall be discharged from service.

8. As seen from G.O.Ms.No.116, GAD dated 29.02.2008, relaxation

has been given to Rue 23 of the A.P. Ministerial Service Rules, 1966 in

favour of Junior Stenographers, who were appointed between

05.03.1987 and 14.07.1998 as to the requirement of passing Typewriting

Higher grade in Telugu and Shorthand by exercising the powers

conferred under Rule 31 of the A.P. State & Subordinate Service Rules,

1996. G.O.Ms.No.68 Finance (ADMN.III) Department dated 11.03.2010,

which was issued as one time relaxation from acquiring the Typewriting

English Higher grade in respect of Junior Accountants appointed on

compassionate grounds conditionally, wherein, it is observed as follows:

"9. Government, after careful examination of the matter, noticed that due to lack of Typewriting institutions the candidates who were appointed on compassionate grounds are not able to get themselves qualified with the typewriting English Higher Grade and also by attending the classes out of the office hours in addition to attending to their family problems as a result of which they continue to be as a temporary employees without regularizing their services, though their juniors have been regularized.

10. Government have also noticed that there is a striking anomalous position with regard to regularization of the services of Junior Accountant in the A.P. Treasury & Accounts Department. Prior to 26.10.2007, the Junior Accountants had to acquire a higher grade typewriting in English and on 27.10.2007

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this qualification was changed and the individuals were required to qualify the certificate course in computers as prescribed in G.O. read above. As the Institutions imparting such computer courses are available only at District Headquarters and the employees appointed on compassionate grounds were facing great difficulty to acquire such qualifications by sparing out of office hours which is at a very long distance from their work place. Also noticed that the certificate courses in computers prescribed in G.O. 6th read above is on high side and it will not relevant to the day to day administration of the Treasury personnel. Hence, it has been decided to grant one time exemption from acquiring Typewriting English Higher Grade/certificate course in computers courses in respect of Junior Accountants appointed on compassionate grounds in T & A Service and working as on 27.10.2007.

11. Now, therefore, in exercise of the powers conferred under rule 31 of the A.P. State & Subordinate Service Rules, 1996, the Governor of Andhra Pradesh hereby relax as one time measure from passing Typewriting English Higher Grade/Certificate courses in computers to the Junior Accountants appointed on compassionate grounds in T & A Service and working as on 27.10.2007 but could not acquire the said qualifications in relaxation of Rule 6 of A.P. Treasury (Sub) Service Rules, issued in G.O. 1st, 2nd and 6th read above, in favour of the 46 individuals shown in the Annexure to this order."

9. As seen from the order in OA No.1856 of 2017 dated

06.11.2017, the applicant therein was given a similar notice as is given

to the petitioner herein asking to give her willingness to take the lower

post and the said notice was challenged in the said OA. The said OA was

allowed setting aside the notice and the respondents therein were

directed to take into consideration the fact that the applicant therein

possessed P.G. Diploma in Computer Applications and to consider

relaxation of the qualification. Challenging the said order dated

06.11.2017 of the Tribunal, the Government filed WP No.11321 of 2019.

Contention of the Government in the said writ petition was that the said

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notice was issued, in conformity with the orders passed by the State

Government vide G.O.Ms.No.969, G A (Ser.A) Department dated

27.10.1995 and that the Tribunal is not justified in setting aside the

notice therein, which was issued to the applicant, as such a condition

was incorporated at the time of appointment of the applicant itself. The

Division Bench of this Court dismissed the said writ petition filed by the

government, observing as follows:

"It is pertinent to note that the State Government granted relaxation in favour of certain class of employees, vide G.O.Ms.No.116, GA (Ser.) Department, dated 29.02.2008, having noticed the non existence of typewriting training institutions. It is also not in controversy that in 2010 also the government granted relaxation from acquiring typewriting qualification in respect of Treasury Department. The Tribunal also noted about the non-existence of typewriting training institutions and the usage of computers in all the offices. The reality remains that, apart from the degree qualification in computers, the applicant possesses PGDCA also. It is not the case of the respondents herein that the applicant has not discharged her duties properly due to the lack of typewriting higher grade qualification.

A perusal of the order passed by the Tribunal, in clear and vivid terms, discloses that the Tribunal, after elaborately and meticulously considering various issues, including the relaxation given by the State Government, by way of the above referred governmental orders, and also the present situation, with regard to the non-usage of type machines and the usage of computers, came to the conclusion that the very insistence of the respondent authorities cannot be sustained.

It is settled and well established principle of law that a writ in the nature of a writ of certiorari cannot be issued, under Article 226 of the Constitution of India, unless the impugned action suffers from jurisdictional error and patent perversity. In the considered opinion of this Court, the said contingencies are conspicuously absent in the case on hand."

10. Contention of the learned Government Pleader is that

G.O.Ms.No.116 dated 29.02.2008 was issued in favour of those persons

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who were appointed between 05.03.1987 and 14.07.1998 and that it

cannot be extended to the petitioner. The said contention was dealt

with in OA No.1856 2017 and it was held that there are no institutions

for training on typewriting machines and as such they cannot raise such

an objection. The reasoning in the O.A. was accepted by a Division

bench of this Court in the said writ petition. The Government also took a

plea in the said writ petition that the notice therein was issued in

conformity of G.O.Ms.No.969 dated 27.10.1995, but the said contention

was also not accepted by the Division Bench of this Court.