HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No.23022 OF 2020
ORDER:
The present Writ Petition is filed under Article 226 of
Constitution of India for the following relief/s:
"....to issue a writ, order or direction particularly one in the nature of Writ of Mandamus declaring the action of the 1st respondent in not including the names of the petitioners in the seniority lists dated 26.03.2011 and 12.11.2020 of Senior Assistants as illegal, arbitrary, violation of Regulation 4 (d) and 16 (1) of A.P. Vaidya Vidhana Parishad Special Service Regulations, 2000 as illegal, arbitrary, violation of Articles 14, 16 and 21 of the Constitution of India; and consequently direct the Respondents to place the names of the petitioners at appropriate place and pass such other order or orders..."
2. The present writ petition is filed in not considering the case of
the petitioners for the post of Office Superintendent/Manager in A.P.
Vaidya Vidhana Parishad and not showing the petitioners in the
revised provisional seniority list dated 12.11.2020.
3. The facts of the case are that the petitioners were appointed on
compassionate grounds. The 1st petitioner was appointed by an order
dated 24.08.1994 vide proceedings in RC.No.72/C3/94 in the A.P.
Vaidya Vidhana Parishad (hereinafter called as "Parishad") and his
services were regularized by an order dated 06.07.1998 vide
proceedings in RC No.984/E1A/98. In the similar manner, the 2nd 2
petitioner was also appointed on compassionate grounds vide
proceedings No.RC984/E1A/98, dated 06.07.1998 and his services
were also regularized w.e.f. 04.05.1995.
4. The case of the petitioners is that both the petitioners were
initially appointed as Junior Assistants vide proceedings dated
24.08.1994 and 04.05.1994 respectively. And it is crystal clear that
the appointment of both the petitioners is governed by the rules and
regulations of Parishad and they originally belong to Parishad from
the date of their appointment.
5. Later they were promoted and their probation was declared by
the 4th respondent on 25.08.1996 and 03.05.1997 respectively and
they are true members of the said Parishad. Though they were
appointed and their probation was declared by the Parishad and not
including the names of the petitioners for further promotion untenable
and hyper technical objections is being questioned before this Court.
6. Learned counsel for the petitioner further submits that the 1st
and 2nd petitioners were appointed as Senior Assistants vide
proceedings dated 10.10.2002 in RC No.67/C2/2002 by the Regional
Director of Medical and Health Services, Kadapa and their services
were regularized w.e.f. 15.10.2002 in the category of Senior Assistant
and placed in probation for a period of one year vide proceedings in
RC No.414/C3/2004 and their probation has been completed 3
satisfactorily on 06.11.2003 and issued proceedings in RC
No.993/C2/2005, dated 19.05.2005.
7. The grievance of the petitioners is that though the petitioners
belongs to the said Parishad, their names were not figured in the
seniority list for the post of Office Superintendent/Manager and they
have made representations to the respondent authorities separately by
dated 06.04.2011, 19.11.2012, 20.10.2020 in the following manner.
"I submit that the Government has formulated Special Service Regulations through G.O.Ms.No.48, Health, Medical and Family Welfare Department, dated 29.01.2000. Extract of Rule 14 is produced hereunder for favor of kind perusal
'persons appointed in various categories on contract basis or direct recruitment after formation of the Commissionerate shall be absorbed duly regularizing their services w.e.f. date of their joining duty and their regular services can be taken into account for all the purposes including seniority, probation, pension and leave'."
8. And in the said representation it was stated and pleaded that
their services would have been appointed as Junior Assistant-cum-
Typist after formation of the said Parishad. And declaration of
probation was also passed by the then District Coordinator of Hospital
Services, District Hospital, Chittoor and their services are continued
in the said Parishad pursuant to the seniority list of Senor Assistant
communicated vide RC No.1111/HR Cell/APVVP/ Ministerial/2011 4
dated 26.03.2011 by Commissioner, A.P.V.V.P., Hyderabad, has not
included their names in the seniority list of Senior Assistant.
Therefore, the petitioners prayed to consider their case and include
their names in the final seniority list of Senior Assistants.
9. The petitioners filed the present writ petition aggrieved by not
passing any order on their representations, seeking direction to the
respondents to treat them as the employees of the said Parishad and
include their names in the Seniority List of Senior Assistant for
further promotion of Office Superintendent/ Manager in the said
Parishad.
10. Learned counsel for the petitioners would submit that at the
time of formation of the said Parishad, there is no clear demarcation of
the employees between APVVP and other wings of the Health
Departments i.e. Director of Health, Directorate of Medical Education
and they are all comes under one umbrella.
11. Learned counsel for the respondents filed their counter affidavit
and would contended that as per per G.O.Ms.No.48, HM&FW (C1)
Department dated 29.01.2000 there was no clear demarcation
between the Director of Health (preventive) side and APVVP (Curative)
side. Employees of various cadres appointed in APVVP and DPH&FW
institutions were used to be promoted through combined seniority
lists by the promoting authorities of DPH&FW i.e., Regional Directors 5
in respect of Zonal posts and Director of Health A.P., in respect of
State cadre posts and were used to be posted to institutions of APVVP,
DPH&FW & DME as per available vacancies till 2008. On reviewing
the situation in 2008 to strengthen linkage at appropriate levels for
attaining the objectives of the formation of APVVP, the Government of
Andhra Pradesh permitted the Commissioner of the said Parishad to
call for options from interested employees of all the wings i.e. APVVP,
DPH&FW & DME including employees working on deputation in
APVVP, during the year 2008 to build up its own cadre strength,
through APVVP ordinance No.8 of 2008 (Amendment Act) amending
the Act, and in G.O.Ms.No.316 HM&FW Department, dated
25.08.2008, to materialize the goals and objectives of formation of
APVVP in health sector under curative aspect.
12. Accordingly, the said notification was published in newspapers
giving wide publicity and also communicated to the RDM&H Services
and DPH&FW, DME, and they in turn communicated to all the
employees working under their control to opt their options. Interested
employees have exercised their options for absorption in to APVVP
during 2008. After examining eligibilities their services were absorbed
into APVVP as per rules and they have been notified as APVVP
employees. The petitioner have not opted to the APVVP for the
notification issued dated 25.08.2008 inviting applications under
Section 11 of the A.P.V.V.P. Act, 1986 as amended by the APVVP 6
Amendment Ordinance, 2008, A.P. Ordinance No.8 of 2008. Hence,
the petitioners were not considered as APVVP employees and now they
have filed the present writ petition after completion of final absorption
process in APVVP in the year 2008 vide proceedings in RC
No.2145/E2/DCHS/CTR/2008, dated13.12.2008. Where, in the said
proceedings, the names of the petitioners were not figured in the
seniority list.
13. The further contention of the respondents is that petitioners
were given promotion according to their eligibility at their respective
institution from 2008 onwards separately without touching the APVVP
employees in combined AP and residual AP, in which both the
petitioners seniority has been continuously figured and authenticated
under RDM&HS, Kadapa as well settled since long time and there has
been no combined seniority list of APVVP & DH employees since 2008
onwards and since all the time the services and seniority of the
petitioners have been continuously stand settled with the Regional
Director of Medical and Health Services, kadapa and their seniority
has been finally unconditional at DPH&FW side by the Regional
Director, M&HS under zone-4 continuously for the panel years from
2003-2004 to 2019-2020. The seniority list dated 18.11.2009 are
evident that the names of both the petitioners are figured under
S.Nos.114 and 121 respectively as DPH&FW employees in the final
seniority list of Senior Assistant zone-4 for the panel year 2019-2020. 7
It is the further contention of the respondents, that the petitioners
have not made any representation from the date of promotion by the
RDM&HS, Kadapa from 2002 to till date i.e. on 2020 i.e. particularly
on 06.04.2011, 19.11.2012 even after lapse of 18 years to the AVVP
deletion of their names from the seniority etc., at DPH&FW side and
have protected their rights of services, seniority etc in the DPH&FW
Department.
14. Now, the respondents further contended that the petitioner
rushed before this Court making fraudulent, baseless claims to go into
APVVP with malafide intention to illegally grab the promotional
benefits for which they are not at all eligible and making efforts to
crucify the legitimate rights of APVVP employees whose seniority has
been settled numerous times once for all the time and the petitioners
have kept silent for 18 years and they have not opt for absorption into
APVVP vide G.O.Ms.No.316, dated 25.08.2008. It is the further
contention of the respondents that settled seniority cannot be
reopened after a period of three years as per the Circular Memo
No.57759/Ser.A/2004-1, dated 20.05.2004 of General Administration
Department, Government of Andhra Pradesh. The respondents also
relied on the judgment of the Hon'ble Apex Court in B.S. Bajwa v. 8
State of Punjab and others1 the relevant portion is extracted
hereunder
"the settled legal proposition that emerges that once the seniority has been fixed and it remains in existence for a reasonable period, it cannot be challenged and changed on any ground whatsoever in K.A. Abdul majeed v. State of Kerala and Ors., (2001) 6 SCC 294, the Hon'ble Supreme Court held that seniority assigned to any employee could not be challenged after a lapse of seven years; though even on merit it was found that seniority of the petitioner therein had correctly been fixed".
15. Learned counsel for the respondent further submitted that
noticing the recent prospects of promotional avenues in APVVP are
now rushing before this Court by making fraudulent, baseless claims
to transgress themselves into APVVP with malafide intentions.
16. Now, the point for consideration is whether the petitioners can
be treated as APVVP employees or not?
17. The Andhra Pradesh Vaidya Vidhana Parishad Act, 1986 has
been promulgated and came into force by an Act No. 29 of 1986. The
Act provides for the constitution of Commissionerate for establishing,
expanding and administering District, Erstwhile Taluk Hospitals and
Dispensaries for providing better medical care in the State of Andhra
Pradesh and the matters connected therewith or incidental thereto.
Section 7 deals with the Powers of the Governing Council. Section 10
1 (1998) 2 SCC 523 9
deals with the Funds of the Commissionerate. Section 11 deals with
the vesting of dispensaries and hospitals with the Commissionerate.
Further sub clause (ii) of Provision for Section 11 says that the
services rendered by any such officer or employee in the afore stated
dispensaries, non teaching hospitals and the Directorate of Medical
and Health Services and its subordinate offices prior to their
absorption in the Commissionerate shall be deemed to be service
under the Commissionerate constituted under this Act and he shall be
entitled to count that service for the purpose of increments, leave,
pension, provident fund and gratuity. Sub-clause (iii) to proviso of
Section 11 such of those officers and employees who do not opt for
absorption in the service of the Commissionerate may continue on
deputation.
18. The Government has amended the APVVP Act by an amendment
Act No.8 of 2008 and as per G.O.Ms.No.316, HM&FW Department,
dated 25.08.2008 vide such amendment Section 11 has been
amended by Act No.36 of 2008. By the amendment, the following
proviso has been incorporated to Section 11 of the APVVP Act. i.e. "e"
The Commissioner, may call for options from the employees who are
working on deputation in APVVP from time to time and in subsequent
dates from those employees who are working under the control of the
Director of Health and the Director of Medical Education who are
willing to work in the APVVP by their absorption of their services in 10
the APVVP. Basing on the said amendment, the respondent
authorities have issued notification No.316, dated 29.08.2008 vide RC
No.409/PLG.II/2008 inviting applications for their absorption in the
APVVP. The petitioners who are well aware of the notification have
not opted for the services into APVVP and made representations on
06.04.2011 and 19.11.2012 by the 1st petitioner and the 2nd petitioner
made representation on 20.10.2020 to consider their names for the
final ensuing seniority list for Senior Assistant duly including their
names in the appropriate place duly considering the date of joining in
the cadre of Junior Assistant. They made their applications after
lapse of three years after inviting objections for absorption into APVVP
and the 2nd petitioner has made representation after lapse of 12 years
from the date of notification.
19. Learned counsel for the petitioners filed their reply affidavit for
the counter affidavit filed by the respondents and admitted that at
para No.8 and 9 prior to 2008 there was no clear demarcation
between the Director of Health (Preventive) Medicines and APVVP and
DPH&FW institutions were used to be promoted through combined
seniority list by promoting authorities of DPH&FW i.e. Regional
Director, in respect of Zonal post, in respect of State cadre posts and
were used to be posted to institutions of APVVP, DPH&FW and DME
as per the available vacancies till 2008. Where, the petitioners were
aware of the fact that an amendment was promulgated by way of Act 11
No.36 of 2008 and a proviso was incorporated in Section 11 of the
APVVP Amendment Act. As per the Act, they have invited applications
for absorption of the employees who are under the control of APVVP
prior to 2008. The petitioners were not responded for the said
notification. Now, they cannot avail the remedy seeking a direction
from this court to direct the respondent authorities to consider their
case on the grounds that they have initially appointed under the
APVVP Act and they were given promotions and their services were
regularized by the APVVP. A prudent man ought to respond for the
notification when invited applications to absorption into APVVP and
Section 12 which was incorporated by Act No.36 of 2008, a power was
given to the Commissioner calling for options from the employees who
are working on deputation for absorption in the services of the APVVP.
20. As rightly contested by the respondents, the petitioner has
made their applications only with an ulterior motive, with prospectus
of promotional avenues in APVVP. The principle is well settled that
where any such provision provides a principle meant for being a
particular Act, then, that thing or act must be done in accordance
with law manner prescribed. Basing on the amendment made to the
APVVP to Section 11, the respondent authorities have invited 12
objections for absorption into APVVP but the petitioners have not
availed the said opportunity for absorption into APVVP.
21. As per the assertions made in the Writ Affidavit at para-7 it
was stated that while the petitioners were working as Junior
Assistants under A.P. Vaidhya Vidhana Parishad without their
volitions, the Regional Director of Medical and Health Services,
Kadapa has called for the service particulars of all the Junior
Assistants/Junior Stenos/Junior typists working in all the
institutions including institutions functioning under the control
of A.P. Vaidhya Vidhana Parishad under Zone-IV Chittoor,
Kadapa, Anantapur and Kurnool districts for effecting
promotions to the existing vacant posts of Senior Assistant
including institutions working under the Administrative control
of A.P. Vaidhya Vidhana Parishad. As per instructions of the
Regional Director of Medical and Health Services, Kadapa, both
the petitioners have attended for the counseling along with other
eligible candidates including the candidates working under the
A.P. Vaidhya Vidhana Parishad on 10.10.2002. During the
above said counseling, the petitioners were promoted as Senior
Assistants and posted in the existing vacancies under the
administrative control of A.P. Vaidhya Vidhana Parishad i.e.,
District Hospital Chittoor and Area Hospital Kuppam 13
respectively, and their services were regularized as Senior
Assistant and their probation was declared satisfactorily as
Senior Assistant on 15.10.2003 and 06.11.2003 respectively.
Since then they have been discharging their duties as Senior
Assistant in the Office of the Regional Director of Medical and
Health Services. As per the said assertions, the petitioners were
absorbed in the Regional Director of Medical and Health Services
but not as deputationists under Rule-110 of A.P Fundamental
Rules. There is no evidence to show that the petitioners were
appointed on deputation as per assertion in affidavit their
absorption is not on deputation.
22. Deputation means Service outside the cadre or outside the
parent department. Deputation is deputing or transferring an
employee to a post outside the cadre, that is to say, another
department on temporary basis. After expiry period of
deputation the employee has to come back to his parent
department to occupy the same position unless in the
meanwhile, he has been promoted in his parent department as
per recruitment rules. There can be no deputation without the
consent of the person so deputed and he would therefore, know
his rights and privileges in the deputation post. The deputation 14
is a Tripartite Agreement which involves lending department,
borrowing department and the person sent on deputation. The
consent of all the three is required for an agreement to mature
into a legal deputation.
23. The Hon'ble Apex Court in Kunal Nanda case i.e. Kunal
Nanda Vs Union of India2 held that a deputation cannot asserted
and succeed in his claim for permanent absorption in the
department where he works on deputation unless his claim is
based upon a statutory rule or regulation or order having the
force of law, a deputation can always and at any time be
repatriated to his parent department at the instance of either
borrowing department or parent department there is no definite
right to such person to continue for long or get absorption in
borrowing department. In the present case, the petitioner was
not transferred to the Regional Director of Medical and Health
Services on deputation he was absorbed in the said department
while all the departments under one umbrella if the petitioners
are deputationists this court ought to have been ordered for
repartition of the petitioner to the parent department as the
petitioners are not in deputation, this court is not inclined to
allow the writ petition for the relief claimed.
2
2005 (5)Scc362 15
24. The contentions of the petitioners that they are appointed
under A.P.V.V.P. and they should be treated as employees of
Vadhya Vidhana Parishad is hereby rejected as they were
absorbed by the Regional Director of Health and Medical
Services and they have not opted their services for the
absorption in A.P.V.V.P. basing upon the notification dated
29.08.2008 vide proceedings in R.C. No.409/Plg.II/2008. Came
to know about the promotional avenues the present writ petition
has been filed and there is a delay of 3 years in making
representation by the petitioners to APVVP to consider their
case.
25. As such, now the petitioners are not entitled for any relief,
much less relief for seniority as prayed for. Hence, I found no
reasons to grant any relief as prayed by the petitioners.
26. Accordingly, the Writ Petition is stands dismissed. No costs.
As a sequel, interlocutory applications pending, if any, shall
stand closed.
_____________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 11-10-2022 Harin 16
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
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W.P.No.23022 OF 2020
Date: 11-10-2022
harin
