Karlapudi Subushan vs State Of Ap
2021 Latest Caselaw 128 AP

     THE HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY

                     WRIT PETITION No.1102 of 2021
ORDER:

This writ petition under Article 226 of the Constitution of India is

filed by the petitioner seeking the following relief:

"....to issue appropriate Writ, Order or Director, more particularly, one in the nature of WRIT OF MANDAMUS declaring the action respondent in not considering my objections dated 14-2-2019 to revise seniority list Rc.No.A2/promotion/2018 dated 21-7-2019 issued by the 3rd respondent as per the Rule 35(a)(b) of AP State Subordinate Service Rules, 1996 and G.O.Ms.No.189 dated 31-12-1997 as illegal, arbitrary, and unconstitutional the action respondents in as illegal, discriminatory, violative of principles of natural justice and also violative of Articles 14, 16 and 21 of the Constitution of India and consequently direct the 3rd respondent to considering my objections dated 14-2-2019 to revise seniority list Rc.No.A2/Promotion/2018 dated 21-7-2019 issued by the 3rd respondent as per the Rule 35(a)(b) of AP State Subordinate Service Rules, 1996 and G.O.Ms.No.189 dated 31-12-1997 in favour of petitioner and pass such other order or orders....."

2. The petitioner was appointed as Secondary Grade Teacher by the

District Selection Committee (D.S.C.) and he served as such for nearly

seven years i.e., from 29.06.1995 to 31.12.2002. While so, respondent

No.2 addressed as a letter to the Director of School Education informing

that to fulfill essential functioning of Social Welfare Hostels in the State,

they decided to fill up the vacancies of Hostel Welfare Officer Grade II in

Social Welfare Department. On receiving such instructions, the Director of

School Education sent a letter to the District Education Officer seeking

information as to who are interested to work as Hostel Welfare Officer

Grade II in Social Welfare Department. Respondent No.3, as a Chairman,

constituted a District Selection Committee, selected the petitioner as

Hostel Welfare Officer Grade II on 01.01.2003, purely on administrative

grounds, on deputation to Social Welfare Department from Education

Department as he was working as Secondary Grade Teacher in Education 2 MSM,J W.P.No.1102 of 2021

Department. Subsequently, the deputation period was extended up to

06.06.2005 and respondent No.3 absorbed the petitioner permanently on

regular basis from Education Department to Social Welfare Department,

vide proceedings, dated 07.06.2005. Since then, the petitioner has been

working as Hostel Welfare Officer Grade II. However, respondent No.3

issued final common seniority list of Hostel Welfare Officers Grade II

working in Guntur District, vide proceedings, dated 21.07.2019, placing

the petitioner at serial No.22.

3. It is stated in the impugned proceedings that no seniority list is

available in the District and separate lists were prepared previously for

male and female and therefore, it was necessary to prepare a common

seniority list of Hostel Welfare Officers Grade II in the District for further

promotions as requested by respondent No.2 - the Director of Social

Welfare Department, duly following the Rules issued by the Andhra

Pradesh Administrative Tribunal in O.A.No.154 of 2014. It is further

stated that provisional seniority list was communicated to all the

concerned for information and for filing objections, if any. Accordingly,

the petitioner submitted detailed objections, by way of representation,

dated 14.02.2019, to respondent No.3. Thereafter, respondent No.3

prepared a final common seniority list, dated 21.07.2019, in which the

petitioner was placed at serial No.22, without following the Andhra

Pradesh State Subordinate Service Rules, 1996 (for short 'the Rules') and

G.O.Ms.No.189, Social Welfare (A2) Department, 31.12.1997.

4. The grievance of the petitioner is that if the aforesaid Rules and the

G.O. are followed, the petitioner's name would be at serial No.1, but

respondent No.3, without considering the objections, issued the final

common seniority list, dated 21.07.2019, placing the petitioner at serial

No.22. Moreover, the impugned proceedings are silent as to consideration 3 MSM,J W.P.No.1102 of 2021

of the objections raised by the petitioner and thereby, it is illegal and

arbitrary.

5. During the hearing, learned counsel for the petitioner reiterated the

contents of the writ petition, while specifically contending that the

objections raised by the petitioner were not adverted to by respondent

No.3 while issuing final common seniority list, dated 21.07.2019, which

would cause serious prejudice to the petitioner and thereby, requested to

issue a direction to revise the final common seniority list.

6. Whereas, learned Government Pleader for Services III appearing

for the respondents contended that against the impugned proceedings

issued by respondent No.3, an appeal would lie to respondent No.2 - the

Director of Social Welfare Department under Rule 26 of the Rules and that

the objections of the petitioner were duly considered while issuing the

impugned proceedings and therefore, this Court cannot exercise power

under Article 226 of the Constitution of India and requested to dismiss the

writ petition.

7. Undoubtedly, provisional seniority list was prepared and

communicated to all the Hostel Welfare Officers Grade II for information

and calling for the objections and accordingly, the petitioner submitted his

objections on 14.02.2019.

8. The main objection raised by the petitioner both in the objections,

dated 14.02.2019, and before this Court is regarding non-compliance of

G.O.Ms.No.189, dated 31.12.1997, non-fixing the ratio of 10% while

absorbing the employees from Education Department and also failing to

consider Rule 35(a)(b) of the Rules.

9. It is evident from the objections, dated 14.02.2019, that a specific

ground was raised as to non-compliance of G.O.Ms.No.189, dated

31.12.1997, so also the failure to follow the Rules with retrospective 4 MSM,J W.P.No.1102 of 2021

effect, more particularly, Rules 33 to 36. Similar objections were raised

even in the present writ petition also. Respondent No.3 adverted to

G.O.Ms.No.20, Social Welfare (SW.SER.1.3) Department, dated

20.08.2004 with regard to fixing quota of 10%, but not referred to Rules

33 to 36 of the Rules. Therefore, learned counsel for the petitioner

contended that failure of respondent No.3 to consider the relevant G.Os.

and Rule 35(a)(b) of the Rules is illegal. Non-consideration of the

objections raised by the petitioner, specifically, may be a ground to

interfere. However, when a statutory appeal is provided under Rule 26 of

the Rules, the petitioner has to approach respondent No.2 in terms

thereof, if really he is aggrieved by the impugned proceedings. When an

alternative remedy is available to the petitioner, it is appropriate to him to

approach the appellate authority, but without availing such statutory

remedy, he directly approached this Court by invoking the jurisdiction

under Article 226 of the Constitution of India. When an alternative

remedy is available, this Court cannot normally interfere with the orders

while permitting the aggrieved party to approach the appellate authority

in view of the law laid down by the Apex Court in Genpact India

Private Limited vs. Deputy Commissioner of Income Tax1.

10. In view of the law laid down by the Apex Court in the above

judgment, the petitioner is relegated to approach the appellate authority

by way of an appeal, strictly in terms of Rule 26 of the Rules.

11. With the above direction, the Writ Petition is disposed of, at the

admission stage. There shall be no order as to costs.

As a sequel, all the pending miscellaneous applications shall stand

closed.

_____________________________ M.SATYANARAYANA MURTHY, J 18th January, 2021 GHN

Dated 22.11.2019 in Civil Appeal No.8945 of 2019 5 MSM,J W.P.No.1102 of 2021