G Rajakumari vs State Of Ap
2021 Latest Caselaw 2957 AP

           HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                           W.P.No.25660 of 2020
ORDER :

This writ petition is filed by the petitioners, who are

working as Agricultural Extension Officers for the following

relief:

"To issue a Writ of Mandamus or any other appropriate writ order or direction declaring the action of the 2nd Respondent not considering our names for promotion to the post of Agricultural Officer in Zone-IV contrary to the Judgment of the Hon‟ble Court in W.P.No.1648 of 2019 and batch and contrary to the Rule 5 © and 6(g) (ii) of Andhra Pradesh State and Sub-Ordinate Service Rules-Revised 1996 as illegal, improper, unjust, arbitrary, contrary to law and violative of principles of Natural Justice and consequently direct the respondents to consider the names of the Petitioners for promotion to the post of Agricultural Officer in Zone-IV and pass..."

This Court has heard Sri K Krishna Murthy, learned Senior

Counsel appearing for the petitioners and Smt. Sumathi,

learned Government Pleader for Services-II.

The petitioners before this Court are working as Agricultural

Extension Officers. Initially, they were denied promotion on the

ground that they were diploma holders. A memo was issued on

12.05.2017 fixing their seniority. The same was challenged by

filing OA.No.2886 of 2018 before the A.P. Administrative

Tribunal, which dismissed their case. Thereafter, they filed a

batch of writ petitions before the Division Bench which by its

order dated 25.10.2019 held in their favour and directed the

respondents to consider the seniority of the petitioners from the

initial date of appointment. The order of the Tribunal was thus

set aside.

In this period, the petitioners completed their B.Sc.(AG)

degree course. However, their names were not considered in the

seniority list that was prepared because the certificates were

submitted after 1st September of that year. The respondents

relied upon Rule 5(c) of the State Subordinate Service Rules

which prescribed that the 1st September shall be the qualifying

date every year. On this essential ground, their cases were

rejected. Questioning the same, the present writ petition is filed.

This is the factual matrix.

Learned senior counsel Sri Krishna Murthy argues that the

plain language interpretation of Rule 6(b) of the A.P.State and

Subordinate Service Rules, 1996 makes it very clear that 1st

September could "ordinarily" be considered as the base date for

estimating the vacancies. He also argues that the proviso to the

said Rule gives the option to those who have subsequently

passed the test to be included. Relying upon Rule 6(g) (ii), he

points out that persons, who have not possessed the prescribed

qualifications at the time of previous panel, can also be

considered for inclusion, if they are qualified on the date

prescribed. He submits that petitioners have the requisite

qualification which is a Bachelor‟s degree from a recognized

University. Due to Covid, it is stated that the petitioners could

not submit their degree certificates in time. He argues that the

certificates were in fact submitted a short time thereafter.

Learned senior counsel points out that for being promoted as

Agricultural Officer by transfer or promotion, the candidate

should possess a degree of Bachelor of Science in Agriculture

from a recognized University. Relying upon the documents filed

and also the counter affidavit, the learned senior counsel argues

that there is a few days gap after 1st September, 2019 and the

petitioners had submitted their certificates to show the

acquisition of the qualification on various dates ending with 23 rd

September, 2019. He argues that the date is not a strict

mandatory date and the use of the word „ordinarily‟ makes it a

flexible rule. He also submits that the Proviso provides an

exception to the Rule permitting the petitioners to file their proof

of acquisition of qualification after 1st September also. Relying

upon the cases reported in Babubhai v. State of Gujarat and

others1 and Kailash Chandra v. Union of India2, where the

word „ordinarily‟ was considered. Learned senior counsel

submits that the word „ordinarily‟ means normally and that

there can always be „exceptions‟. Therefore, he submits that as

vacancies are available, the writ petition should be allowed.

In reply to this, Smt.G.Sumathi, learned Government

Pleader for Services-II argues in line with what is stated in her

counter. The counter does not in a strict sense dispute the

(2010) 12 SCC 254

AIR 1961 SC 1346

qualification of the petitioners. It is very clearly submitted that

the final seniority list was prepared on 17.09.2020 and that the

last date for submission of certificates is 01.09.2020. Therefore,

learned counsel relying upon Rule 6 argues that since the

petitioners did not submit their applications in time to prove the

acquisition of their qualifications, they cannot be considered for

inclusion in the panel. The essence of this defence is spelt out

in paras 6, 7 and 8 of the counter affidavit. It is not denied that

the petitioners pursued their B.Sc. agricultural course as in-

service candidates and completed their course in the month of

September, 2020.

In view of the submissions made by both the learned

counsel, the questions that arise are:

(a) whether the date 1st September, 2020 is fixed or sacrosanct

and

(b) whether the petitioners are entitled to seek relief.

Since there is no dispute about the fact that the petitioners

have acquired qualification for B.Sc. Agriculture, in the opinion

of this Court, the issue turns around the interpretation of Rule

6(b).

This Rule is as follows:

6. Method of preparation of Panels:

(b) The panel of candidates for appointment by transfer to a service or a class of service in any case, where the Commission is not consulted on the suitability of a candidate for such appointment under sub-clause (b) of Clause (3) of Article 320 of the Constitution of India or for

promotion, shall be prepared ordinarily during the months of September every year on the basis of estimate of vacancies sent in terms of sub-Rule (d). First September of the year shall be reckoned as the qualifying date to determine the eligibility of a candidate for such appointment, which shall cease to be in force on the afternoon of the 31st December of the succeeding year or till the next panel is prepared whichever is earlier and for the purpose of preparing the said panel, the zone of consideration shall be in the ratio of 1:3. The period from 1st September of the year to the 31st August of the succeeding year shall be reckoned for the purpose of determining the number of vacancies during the panel.

The other relevant parts of the Rule are reproduced hereunder:

6(g) The following persons shall be considered for inclusion in any panel prepared under sub-Rules (b) and (c). (i) Persons who are qualified on the qualifying date including those who had been included in the previous panel of approved candidates but who have not commenced their probation. (ii) Persons who had not possessed the prescribed qualifications at the time of preparation of the previous panel, but who have since acquired such qualification and are qualified as on the qualifying date.

As rightly submitted by the learned senior counsel and as

per the settled law, one of the primary Rules of interpretation is

the plain language interpretation of a Rule. If this is adopted as

the basis of interpretation of Rule 6(b), it is clear that the word

„ordinarily‟ that is used is included with a specific purpose and it

is not a surplus age. The reading of the Rule would make it

clear that the list shall be prepared „ordinarily‟ during the

months of September of every year. 1st September shall be

reckoned as the qualifying date normally or in ordinary

circumstances. This interpretation is as interpreted by the

Hon‟ble Supreme Court of India in Babubhai's case (1 supra) at

para 41 as follows:

41. The expression ordinarily means normally and it is used where there can be an exception. It means in the large

majority of cases but not invariably. "Ordinarily" excludes "extra-ordinary" or "special circumstances". (vide: Kailash Chandra v. Union of India MANU/SC/0391/1961 : AIR 1961 SC 1346; Eicher Tractors Ltd., Haryana v. Commissioner of Customs, Bombay AIR 2001 SC 196 and State of A.P. v. Sarma Rao.

Similarly, in Kailash Chandra's case (2 supra), in para 8,

the Hon‟ble Supreme Court held as follows:

8. This intention is made even more clear and beyond doubt by the use of the word "ordinarily". "Ordinarily" means "in the large majority of cases but not invariably". This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues to be efficient. The intention of the second clause therefore clearly is that while under the first clause the appropriate authority has the right to retire the servant who falls within clause (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further. This option to retain for the further period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option the authority has to consider circumstances other than the question of efficiency also; in the absence of special circumstances he "should" retain the servant; but what are special circumstances is left entirely to the authority's decision. Thus, after the age of 55 is reached by the servant the authority has to exercise its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if he continues to be efficient.

The word „ordinarily‟ in its normal parlance means

„normally‟. Therefore, it is clear that Rule 6 (b) should itself read

as normally during the month of September every year, the list

should be prepared which leads to the conclusion that there

could be situations when the same is not possible or if the

ordinary circumstances are not present.

The proviso to Rule 6(b) is as follows:

Provided that if the number of candidates to be included in the panel falls short of the number of vacancies estimated such shortfall shall be made good by considering the claims of the other qualified and eligible candidates, if any, in the seniority list placed immediately below.

Provided further that the panel of candidates so prepared shall be reviewed after a period of six months reckoned from the date of approval of the panel, for the purpose of considering the cases of such other persons whose names were not included in the panel prepared earlier for not passing the prescribed tests or for not having special qualifications prescribed under the Rules, if they have subsequently passed those tests or acquired the said qualifications and are otherwise found suitable for inclusion in the panel of the year. No such review of list of approved candidates shall, however, be undertaken where no tests or special qualifications are prescribed under the Rules as condition precedent for promotion or appointment by transfer:

Provided also that no panel of candidates need be prepared:

This proviso makes it clear that if the candidates have

subsequently passed the tests or acquired the qualifications, for

inclusion in the panel of that year, their names can also be

considered after a period of six months from the date of

approval. The proviso as per the settled law on the subject

carves out an „exception‟ to the General Rule or the section. The

law is very well settled and need not be repeated here once

again. Therefore, a reading of this proviso would make it clear

that people who have subsequently passed the tests or acquired

qualification can be included in the „panel‟ of the year. In

addition, sub-Rule 6g(ii) also states that people who have since

acquired the qualification as on the qualifying date can also be

included in the list.

A reading of these Rules together makes it clear that the

words used in Rule 6(b) are not mandatory and that depending

on the situation and the exigencies the word „ordinarily‟ can be

interpreted. As the Hon‟ble Supreme Court has said, the word

„ordinarily‟ means „normal‟ and so there can always be

exceptions.

Therefore, by a cumulative reading of all these clauses in

seriatim and as there is no serious dispute about the other facts,

this Court holds that the rejection or the failure of the

respondents to include the names of the petitioners in the list

only on the ground that they submitted their certificates after 1 st

September, 1990 is held to be incorrect.

Factually also the fact that the Covid-19 pandemic has

disrupted everybody‟s life is also not in doubt more so from

March, 2020 onwards. This is also a factor on which notice can

be taken. It is also clear that prior to 17th September, 1990, the

petitioners have addressed letters bringing out these issues to

the notice of the respondents. The letter dated 25.06.2020

states the position clearly about the delay due to Covid. In

between 14.09.2020 to 21.09.2020 the marls list, provisional

certificates were submitted to the respondents through proper

channel. The final seniority list as can be seen from the

endorsements was electronically signed on 17.09.2020 and

dispatched on 18.09.2020. Thus it is clear that the so-called

delay is not inordinate, long or deliberate. The fact that the

Covid-19 Pandemic delayed the petitioners cannot also be totally

lost sight of. The petitioners cannot be penalized for the delayed

receipt of their certificates. The Pandemic has upset everybody‟s

life. The petitioners or the University in which they studied are

no exception. The delay even if it is reckoned from 1st

September is not inordinate or very long. Before the final list is

prepared, they have addressed letters and within a few days

thereafter they have submitted their certificates.

In addition to the above Para 9 of the counter also makes it

clear that the rules were relaxed by the Government as a special

case for 15 leftover officers of the same grade who did not have

the prescribed qualification on 23.09.2020 which is after the

preparation of the seniority list (17.09.2020). Denial of the

similar treatment to the petitioners would amount to

discrimination. The only fault of the petitioners (who have

acquired the required educational qualification) is the delayed

submission of documents by a few days If the educational

qualifications could be relaxed after the final seniority list is

prepared this court holds that similar benefit must be extended

to the petitioners also.

Therefore, both in fact and in law, the petitioners are

entitled to a relief as prayed for.

The writ petition is therefore allowed and the respondents

are directed to consider the names of the petitioners for

promotion to the post of Agricultural Officer in Zone-IV.

When the arguments were being concluded, it was pointed

out that out of 148 posts, 144 are filled up. There are four

vacancies. It is stated that two more Officers died/expired due to

Covid. Therefore, it is submitted that there are six vacancies

still available. The respondents are directed to look into this

aspect and that as the writ petition is allowed, they are directed

to grant relief to the petitioners.

With the above direction, the writ petition is allowed. No

order as to costs.

As a sequel, the miscellaneous petitions if any shall stand

dismissed.

_________________________ D.V.S.S.SOMAYAJULU,J

Date : 10 .08.2021 KLP