P Bharathi vs The State Of Ap
2021 Latest Caselaw 1054 AP

       HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY

                       W.P. No.20595 of 2019

O R D E R:-
     This writ petition is filed for the following substantive relief:

     "....to issue a writ of mandamus declaring the action of the 3rd
     respondent in not promoting the petitioner on par with her junior, as

illegal and arbitrary, and consequently direct the 3rd respondent to produce the entire record in respect of the promotions for MSW Gr.II and fix notional seniority with effect from 20.04.2017 from the day on which her junior was promoted as MSW Gr.II."

The petitioner asserts that she was appointed as Multipurpose

Health Assistant Female M.P.H.A(F) on 06.01.1996 and declared an

approved probationer on 05.01.1998 in Zone-IV and promoted by

transfer as M.S.W. Grade-II and posted at Government General

Hospital, Kadapa, YSR District on 04.10.2019. While so, in the year

2016, the 3rd respondent issued Provisional Seniority list for

promotion to the post of MSW Grade-II in RC No.2750/G2/2015,

dated 11.03.2016 and called for objections from three candidates

for Zone-IV. As per the provisional seniority list, the petitioner's

name is shown at Sl.No.5 and the name of the 5th respondent is

shown at Sl.No.6. However, the 3rd respondent, vide letter in

Rc.No.119/C1/2016,d dated on 20.04.2017, without communicating

the Final Seniority list to the respective officers, promoted the

5th respondent as MSW Grade-II from the category of MPHA(F) Zone-

IV by overlooking the petitioner's seniority. When the petitioner,

who is senior to the 5th respondent in all respects, sought MSM,,J WP_20595_2019

clarification, the 3rd respondent stated that the 5th respondent was

appointed as per the Rule of Reservation, the details of which, are

shown as under:

As per the Rule of Reservation, required percentage of

SC/ST/PH quota

Name of the Category Sanctioned In position Vacancy M.S.W. Gr.II 09 09 Nil

As per the Rule of reservation required percentage of

SC/ST/PH quota

Name of the Required % Working Balance Category required Scheduled 15%(1.35) = 01 02 Nil Caste (SC) Scheduled 06%(0.54)= 01 01 Nil Tribe (ST) Physically 03%(0.027)=nil Nil Nil Handicapped

Details of the MSW Gr.II working under SC/ST/ quota in Zone IV

Name of the Quota under Roster Point Remarks incumbent which No. appointed as MSW Gr.II G.Sugunakumari S.C. 02 14.02.2008 Govt. Maternity S.C(W) Hospital, Tirupati, Chittoor District P.Manikyamma, S.C. 07 20.04.2017 Govt. Medical S.C College, Kadapa, YSR District M.Bujjamma, Dist. S.T 08 04.10.2019 T.B.Control Centre, S.T.(W) Kadapa, YSR District

Based on the above table, it is pleaded that though the petitioner

was promoted as MSW Grade-II and posted to work at Government MSM,,J WP_20595_2019

General Hospital, Kadapa, YSR District on 04.10.2019, the

5th respondent was appointed under SC category on 20.04.2017

though the quota was already fulfilled by appointing G.Suguna

Kumari under SC quota on 14.02.2008 against the roster point

number 02 SC(W). Therefore, the action of the 3rd respondent in

appointing the 5th respondent again under SC category though

reservation quota was fulfilled by appointing G.Suguna Kumari, is

illegal and arbitrary, and hence, the present petition is filed

seeking appropriate directions.

The 3rd respondent filed counter affidavit totally in support of

the contentions of the petitioner and admitted that the

3rd respondent - Regional Director of Medical and Health Services

communicated the provisional seniority list in Rc.No.119/C1/2016,

dated 08.02.2016 to the office for filling up the post of MSW Grade-

II in Zone-IV. Further, in the provisional seniority list, the

petitioner was placed at Sl.No.5 and the 5th respondent -

P.Manikyamma was placed at Sl.No.6. Later, final seniority list

was prepared and communicated vide Rc.No.119/C1/2016, dated

19.07.2016 to the officers concerned wherein the name of the

petitioner was shown at Sl.No.6 and the name of the

5th respondent was shown at Sl.No.8. The adequacy (SC quota) was

fulfilled on 08.02.2008 by G.Suguna Kumari's appointment by

transfer from other services against the roster point No.2.

MSM,,J WP_20595_2019

It is further contended that the 3rd respondent, by letter

dated 20.04.2017, promoted the 5th respondent as MSW Grade-II

against SC quota at roster point No.7. But as per the proposals

submitted to the Departmental Promotion Committee (DPC), the

then Regional Director of Medical and Health Services, Kadapa

submitted that the required percentage (15%) was already fulfilled

and no backlog points are pending. Therefore, there is no need to

fill up the post of MSW Gr.II under SC quota. Further, it is a fact

that the required percentage under SC quota is only one (01) post

and that post was already filled with G.Suguna Kumari, thereby,

the appointment of the 5th respondent by applying Rule of

Reservation by promotion is not in accordance with law and

requested this Court to pass appropriate orders.

The 5th respondent has filed counter affidavit contending that

she is more meritorious than the petitioner in the merit list as she

was placed at Sl.No.33 whereas the petitioner stood at Sl.No.123 in

the merit list at the time of initial appointment. The District

Medical and Health Officer, Kurnool, who is the appointing

authority, issued appointment orders to the selected candidates

vide Proceedings dated 04.01.1996 wherein a condition was

stipulated that 45 days was allowed to the candidates for reporting

to duty failing which appointment order shall stand cancelled.

Accordingly, the 5th respondent reported to duty on 09.01.1996

whereas the petitioner reported to duty on 06.01.1996. The MSM,,J WP_20595_2019

3rd respondent issued the provisional seniority list for promotion to

the post of MSW Grade-II on 11.03.2016 wherein the petitioner was

shown at Sl.No.5 and the 5th respondent at Sl.No.6. Thereupon,

the 5th respondent submitted her objections claiming that she is

more meritorious than the petitioner in the selection list and got

33rd rank whereas the petitioner secured 123rd rank in the merit

list. Therefore, as per her eligibility, she was promoted as MSW

Grade-II vide Proceedings dated 20.04.2017. She further

contended that though she belongs to SC community, her case was

considered for promotion to the post of MSW Grade-II on the basis

of seniority in the cadre of MPHA(F), but not on the basis of Rule of

Reservation. Therefore, the contention of the 3rd respondent is not

correct. She further contended that she is not claiming her

seniority based on reservation but based on merit in the original

merit list of initial appointment. While relying upon the judgment

of this Court in N.C.K.Reddy v. Government of Andhra Pradesh &

Others1, wherein it is held that seniority shall be taken into

consideration based on the merit in the selection but not the

joining date of that selection, and another judgment reported in

S.S.L.Narayana & Others v. Ch.Madhusudan Rao2 wherein the

High Court of Andhra Pradesh at Hyderabad held that the basis for

fixation of seniority shall be as per ranking assigned in the

selection/merit, she contended that in view of the principle laid

2003 (6) ALD 21

2014(3) ALT 185 (DB) MSM,,J WP_20595_2019

down in these two judgments, the appointment of the petitioner

and her promotion to the next cadre i.e. MSW Grade-II is not in

accordance with law and pleads to dismiss the writ petition.

Heard the learned counsel for the petitioner, the learned

Government Pleader for Services-III appearing on behalf of

respondents 1 to 4 and Sri B.Krishna, learned counsel appearing on

behalf of the 5th respondent and perused the material placed on

record.

It is a strange case where the petitioner is claiming seniority

over the 5th respondent. It is an admitted fact that as per final

seniority list, the petitioner was placed at Sl.No.5 whereas the

5th respondent at Sl.No.6, but the 5th respondent is claiming her

merit in the original selection merit list and not in the present

cadre of MSW Grade-II. In any view of the matter, once the

seniority list is prepared and communicated based on the

objections raised by the 5th respondent, the final seniority list shall

be prepared, and she is allegedly promoted against the vacancy on

the basis of merit and not otherwise, but the 3rd respondent raised

contention in the counter affidavit totally in support of the

contentions of the petitioner that she was appointed against a

vacancy reserved for SC as there was no sufficient percentage in

terms of Rule 22 of the Andhra Pradesh State and Subordinate

Service Rules (for brevity "the Rules"). Though by appointment of

G.Suguna Kumari, the quota meant for SC was fulfilled, there is a MSM,,J WP_20595_2019

real controversy in respect of the appointment of the

5th respondent against the general vacancy or against the vacancy

in compliance with Rule 22 of the Rules which is a disputed

question of fact. If the allegations made in the counter filed by

the 3rd respondent are accepted, the appointment of the 5th

respondent is based on rule of reservation as envisaged in Rule 22

of the Rules, but as per the contention of the 5th respondent that

she was appointed in general vacancy, based on merit and not

based on rule reservation, such question cannot be decided by this

Court in exercise of its jurisdiction under Article 226 of the

Constitution of India since it is a disputed question of fact.

However, the petitioner is not having alternative remedy except to

approach this Court.

Taking into consideration the facts and circumstances of the

case and the real controversy with regard to the appointment of

the 5th respondent against the general vacancy either by applying

rule of reservation or not, but as seen from the allegation in

paragraph No.4 of the counter affidavit filed by the 3rd respondent

that though there was sufficient representation i.e. 15% quota

meant for SCs. is fulfilled, the then Regional Director of Medical

and Health Services, Kadapa filled up the vacancy under SC quota

which is contrary to the principle laid down by the Apex Court in

M.Nagaraja and Others v. Union of India and Others3. When

there is sufficient representation i.e. 15%, the question of

AIR 2007 SC 71 MSM,,J WP_20595_2019

appointing any person by applying rule of reservation under Rule 22

of the Rules, is an illegality.

Therefore, I find that it is a fit case to consider the case of

the petitioner on par with her junior for fixing the seniority by

applying the Rules. Hence, the 3rd respondent is directed to

examine the issue in detail whether the appointment of the 5th

respondent is based on rule of reservation or against general

category based on merit, and fix the notional seniority of the

petitioner in accordance with the provisions of the Andhra Pradesh

State and Subordinate Service Rules, within a period of four weeks

from today and if the 3rd respondent found that the writ petitioner

is also entitled to notional promotion, effect promotion notionally

to the petitioner with effect from 20.04.2017.

With the above observations, the writ petition is disposed of.

No order as to costs.

As a sequel, Miscellaneous Petitions, if any pending, shall

stand disposed of as infructuous.

____________________________ M. SATYANARAYANA MURTHY, J 23.02.2021

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